Could Same-Sex Marriage Be Legal in California Today?

If Supreme Court refuses to hear Prop 8 case, lower court ruling will pave way for marriage

The Supreme Court will decide today whether to hear Hollingsworth v. Perry, the lawsuit challenging the constitutionality of Proposition 8. If the court refuses to hear the case, as some legal analysts predict, a lower-court ruling that struck down the anti-gay marriage law will stand. And if that happens, gay and lesbian couples may be able to marry as soon as this weekend.

Last February, the Ninth Circuit Court of Appeals in San Francisco ruled that Proposition 8, the 2008 voter referendum that took away gay and lesbian Californians’ right to marry, was unconstitutional. The judges wrote that the law “serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California and to officially reclassify their relationship and families as inferior to those of opposite-sex couples.”

Prop 8 supporters filed an appeal to that ruling, which the Supreme Court will examine tomorrow. Their decision may hedge on Justice Anthony Kennedy, the so-called swing vote on the nine-member bench. Some legal scholars believe the conservative justices—Scalia, Thomas, Alito and Roberts—may vote against hearing the case to avoid Kennedy siding with the more liberal justices—Ginsberg, Sotomayor, Kagan and Breyer—and creating a federal precedent legalizing same-sex marriage.

On the other hand, the court could hear the case and issue a ruling that only applies to the state of California, and which couldn’t be construed as opening a door to legalizing same-sex marriage in any other jurisdiction.

At the same time, the court will decide whether to hear cases that challenge the Defense of Marriage Act, specifically the portion of the law that prohibits married same-sex couples from receiving federal benefits. Appeals courts in Massachusetts and New York have already found in favor of gay and lesbian plaintiffs in both cases.


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