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Liat Sadler

Prop. 8 Is Still Unconstitutional

Posted on June 26, 2013

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In February 2004, then-San Francisco Mayor Gavin Newsom directed the Office of the County Clerk to redesign the marriage license forms and begin issuing marriage licenses to same-sex couples. On February 13, 2004, two organizations petitioned the California Superior Court to prohibit San Francisco from issuing marriage licenses to same-sex couples. A month later, the California Supreme Court ordered officials of San Francisco to follow the existing marriage statutes, which provided only for marriage for straight couples. The California Supreme Court consolidated six actions in one case, called In re Marriage Cases.

In In re Marriage Cases, the California Supremes ruled that same-sex couples have a constitutional (under the California Constitution) right to marry. Prop. 8 reversed that. In the November 2008 state elections, California voters narrowly (52-47) approved Prop. 8, which provided that, “only marriage between a man and a woman is valid or recognized in California.”

In 2010, U.S. District Court Judge Vaughn Walker (originally nominated to the bench by Reagan and then re-nominated by George H. W. Bush) overturned Prop. 8, ruling that it violated both the due process and equal protection clauses of the U.S. Constitution. State officials refused to challenge Judge Vaughn’s ruling. The Ninth Circuit Court of Appeals then asked the California Supreme Court to determine whether the proponents of Prop. 8 had standing to appeal. Standing, in a word, essentially means having your own, personal skin in the game, not in the same way that we, generally, as citizens, have skin in the game. The California Supreme Court said that the proponents of Prop. 8 did have standing. The Ninth Circuit then affirmed Judge Vaughn’s ruling on the merits – Prop. 8 violated the right to due process and equal protection under the law.

Onwards we went to the U.S. Supreme Court, where the majority (Roberts, Scalia, Ginsburg, Breyer and Kagan) ruled that the proponents of Prop. 8 actually lack standing. The Court said that they have no personal stake that differs from the general interest of any other California resident. To have standing, one must show that he or she suffered a “concrete and particularized injury that is fairly traceable to the challenged conduct and is likely to be redressed by favorable judicial decision.”

So, where are we now? The U.S. Supreme Court has vacated the decision of the Ninth Circuit – which had affirmed Judge Vaughn’s ruling that Prop. 8 was unconstitutional. What remains now is Judge Vaughn’s ruling and California Governor Jerry Brown’s statement that, “In light of the decision, I have directed the California Department of Public Health to advise the state’s counties that they must begin issuing marriage licenses to same-sex couples in California as soon as the Ninth Circuit confirms the stay is lifted.”