Capitol Alert

The latest on California politics and government

By Michael Doyle

McClatchy Newspapers

WASHINGTON -- The Supreme Court made history Wednesday with two victories for marriage equality, in California and nationwide.

In a pair of highly anticipated decisions, the divided court effectively undercut California's Proposition 8 that banned same-sex marriage. Separately, the court struck down the federal Defense of Marriage Act, a law that denies same-sex married couples federal benefits. Together, the decisions provide an emphatic, if incomplete, win for advocates of same-sex marriage.

Read the court's Prop. 8 decision here

The decisions address different issues, and neither declares a broad constitutional right to same-sex marriage that covers residents of all 50 states. But in each case, acting on the final day of the term that began last October, a slim 5-4 court majority endorsed a position that helps same-sex marriage cause as well as individual couples..

"We're proud of you guys," President Barack Obama said in a broadcast telephone call from Air Force One to the two same-sex couples who had challenged Proposition 8, "and we're proud to have this in California."

The Proposition 8 case involved a challenge to the 2008 California ballot measure that banned same-sex marriage. On Wednesday, in somewhat of a strange-bedfellow alliance, the court concluded that the supporters lacked the legal standing to defend the measure. For same-sex couples in California, the real-world result could be they might be able to secure marriage licenses within about 25 days, if not sooner.

Read the court's decision on DOMA here

Standing is the legal term for being eligible to file a lawsuit. To have standing, an individual must have a significant interest in the controversy and must either have suffered an injury or face an imminent threat of injury.

"It is not enough that the party invoking the power of the court have a keen interest in the issue," Chief Justice John Roberts Jr., wrote for the 5-4 majority, adding that "because we find that petitioners do not have standing, we have no authority to decide this case on the merits, and neither did the 9th Circuit."

The decision eliminates a lower appellate court ruling and leaves intact a trial judge's order blocking Proposition 8 from taking effect. At the very least, this means that two same-sex couples who filed the lawsuit against the ballot measure may marry. Advocates say that other same-sex couples in California should be able to take advantage of the ruling, though that same-sex marriage opponents suggest this might require further trial-level clarification.

California Gov. Jerry Brown and California Attorney General Kamala Harris have advised county officials that they must resume issuing same-sex marriage licenses once a legal order is received from the appellate court. Typically, it takes about 25 days for a Supreme Court ruling to filter down to the lower courts, though advocates hope it can happen sooner.

"We're elated," Berkeley, Calif. resident Kris Perry, one of the individuals who challenged Proposition 8, said at a news conference. "Now, our children will finally be in a family where their parents are married."

The court's majority, though, stopped short of declaring a constitutionally protected right to same-sex marriage nationwide. The justices also declined to take up the Obama administration's proposal, which would have extended the ruling to a handful of other states that have shared California's policy mix of allowing civil unions while banning same-sex marriage.

The four dissenting justices, including one liberal and three conservatives, argued that the Proposition 8 opponents should be heard in court. Intriguingly, Justice Anthony Kennedy, who wrote the separate decision striking down the Defense of Marriage Act, was among the justices who thought the Proposition 8 case could have been decided on the merits.

The separate Defense of Marriage Act case involved a challenge to the 1996 federal law that prohibited same-sex couples who'd been married under state laws from obtaining a host of federal benefits. A different majority from the one that ruled in the Proposition 8 case concluded that portions of the law violated the Constitution and intruded on the states' traditional authority over marriage.

"DOMA divests married same-sex couples of the duties and responsibilities that are an essential part of married life," Kennedy wrote, adding that "it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage.

Kennedy joined the court's four liberal justices in the decision. The court's four conservatives dissented.

"The Constitution does not forbid the government to enforce traditional moral and sexual norms," Justice Antonin Scalia wrote in dissent.

Section 3 of the Defense of Marriage Act declares that, for the purposes of providing federal benefits, marriage is "only a legal union between one man and one woman as husband and wife" and a spouse is only a "person of the opposite sex who is a husband or a wife."

The definition is important because it determines eligibility for a host of federal rights, benefits and privileges.

The Government Accountability Office has identified more than 1,100 areas of federal law in which marriage matters, ranging from tax and welfare benefits to employment and immigration. Same-sex military couples, for instance, are denied housing, health insurance and disability benefits, and are ineligible for burial alongside their spouses in national cemeteries.

"The statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the state, through its marriage laws, sought to protect in personhood and dignity," Kennedy wrote.

Twelve states and the District of Columbia now recognize same-sex marriage, and a recent Pew Research Center survey found that 72 percent of those asked thought that legal recognition of gay marriage was inevitable.

Each case involved a separate set of facts and distinct legal reasoning.


The challenge was brought on behalf of several same-sex couples, including Perry and her partner, Sandra Stier, and Paul Katami and his partner, Jeffrey Zarrillo. Both couples were denied marriage licenses in California because of the Proposition 8 ban.

"I'm a 45-year-old woman," Perry testified during a 2010 trial over the ban. "I have been in love with a woman for 10 years and I don't have a word to tell anybody about that."

The California case arose after the state Supreme Court ruled that same-sex couples had the right to marry. Voters subsequently changed the state's constitution in 2008, in the Proposition 8 ballot measure, to limit marriages to those between one man and one woman.

The Obama administration proposed that the court protect same-sex marriage specifically in the handful of states that ban it but accept gay civil unions. The justices, though, showed little interest in this proposal.

After a high-profile, 12-day trial in San Francisco, U.S. District Judge Vaughn Walker issued an unusually detailed, 136-page opinion in August 2010 in which he concluded that Proposition 8 violated the U.S. Constitution.

Walker retired in 2011, at which time he told reporters he was gay and in a long-standing relationship with another man. Conservative supporters of Proposition 8 failed in their subsequent attempt to claim that Walker was biased because of his sexuality.

The 9th U.S. Circuit Court of Appeals upheld Walker's decision, though for a very state-specific reason that essentially confined its reach to California: The California Supreme Court had recognized same-sex marriage rights in May 2008, and then voters removed those rights in November 2008 by approving the ballot measure.

California state officials declined to defend the same-sex marriage ban. Instead, a conservative former Southern California state legislator named Dennis Hollingsworth and allies argued on the proposition's behalf.

The California Supreme Court concluded, and the 9th Circuit Court of Appeals accepted the view, that the opponents were authorized to step in since the state had stepped out.


The federal law defining marriage inserted the national government into what traditionally had been state territory.

Supporters of the Defense of Marriage Act when it passed included Democratic Sen. Harry Reid of Nevada, who's now the Senate majority leader, and then-Sen. Joe Biden of Delaware, now the vice president.

The House of Representatives, which passed the bill by an overwhelming 342-67, explained in a committee report that the law was meant to convey "moral disapproval of homosexuality." One of the law's chief backers at the time, current Sen. Tom Coburn, R-Okla., said during the House debate that homosexual conduct was "based on perversion and . . . lust."

In the years that followed, though, a number of supporters began back-pedaling. The act now is opposed by former Rep. Bob Barr of Georgia, a Republican author of the bill who in July 1996 decried "the flames of hedonism, the flames of narcissism, the flames of self-centered morality (that) are licking at the very foundations of our society: the family unit."

The Obama administration initially defended the federal law, as is customary for administrations, but it stopped in February 2011 after concluding that Section 3 violated the Constitution. In its place, House Republicans funded the defense of the statute through what's called the Bipartisan Legal Advisory Group.

"It is still necessary to introduce legislation to repeal DOMA and strike this law once and for all," Democratic Sen. Dianne Feinstein said Wednesday afternoon, stating her intention to "introduce that legislation today with 39 cosponsors in the Senate."


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