Today we have a great guest column prepared exclusively for Gay Marriage Watch by John at LegalMatch.com:

The Situation in California

A couple years ago, same-sex marriage was legal in California. Then it wasn’t. Several months ago, it looked as if it was on the verge of becoming legal again. Then it didn’t.

Just what is going on?

It’s complicated, to say the least.

In this column, I’m going to attempt to break down the current legal and procedural posture of the Prop. 8 case – how it began, where it’s probably going, and the specific details of the legal issues that courts have to consider in these cases.

So, let’s start from the beginning. In 2000, California voters passed Proposition 22, which created a new California statute defining marriage as a union between a man and a woman.

In February of 2004, the city and county of San Francisco, at the direction of Mayor Gavin Newsom, began issuing marriage licenses to same-sex couples. Just a month later, the California Supreme Court held that all of those marriage licenses were invalid, because the city had acted in direct conflict with the law. However, it made clear that the city was free to bring a challenge to the constitutionality of Proposition 22, and that the court would hear such a challenge. In response, the city and county of San Francisco, along with several same-sex couples who wished to marry, filed a lawsuit claiming that the marriage statute violated the Constitution of California.

The court consolidated them into a single case, entitled In Re Marriage Cases. At the trial level (where the case was first filed), the plaintiffs won, with the court ruling that the marriage restriction violated the state constitution. At the intermediate appellate court, the trial judge’s ruling was reversed. The plaintiffs then appealed to the state Supreme Court.

This is when the case started to make national news. After hearing arguments from both sides, the California Supreme Court held, in an opinion issued on May 15, 2008, that the marriage restriction put in place by Proposition 22 violated the state constitution. The court mainly relied on a 1948 case, in which it overturned the state’s ban on interracial marriage, holding that marriage is a “basic civil right,” and as such, cannot be denied to same-sex couples without an extremely compelling justification (and the court found none). It further held that sexual orientation is a suspect classification, like race or gender, which makes government discrimination based on sexual orientation nearly impossible to legally justify.

Governor Arnold Schwarzenegger, San Francisco Mayor Gavin Newsom, and several other public officials, praised the court’s decision and vowed to enforce it. Meanwhile, a campaign to amend the state constitution to ban same-sex marriage had already gathered enough signatures to make it onto the ballot.

Same-sex couples began getting married shortly after the Supreme Court ruling. However, in November of 2008, Proposition 8, which amended the state constitution to restrict marriage to opposite-sex couples, passed with a narrow majority of votes.

Because this was a constitutional amendment, and not a simple statute, it would be nearly impossible for any California court to find the new restriction unconstitutional (it’s part of the constitution, after all).

However, that didn’t stop the opponents of Prop 8 from trying a long-shot legal strategy to overturn it in a California court: the California Constitution provides two ways to change it: an amendment, or a revision. An amendment is a simple addition or repeal of a few provisions. A revision, on the other hand, is a fundamental re-structuring of the state government (effectively throwing out the state constitution and writing a new one). While an amendment can either be passed by the state legislature, or enacted by voters, a revision MUST be written by the state legislature, approved by a 2/3 supermajority of both houses of the legislature, and then approved by a majority of voters.

The opponents of Prop 8 argued that, although it added just a single sentence to the state constitution, it was actually a revision, because it eliminated what the state Supreme Court had already deemed to be a fundamental constitutional right. If the Supreme Court agreed, that would presumably mean that the correct procedures were not followed in enacting Prop 8, thereby invalidating it. The Supreme Court did not take this position, however, and upheld Prop 8, but they did hold that the same-sex marriages performed before Prop 8 passed will remain valid.

So, that’s where same-sex marriage now stands under the law of California. But, of course, that isn’t the entire story.

The Federal Situation

While California law on same-sex marriage is now pretty much settled, proponents of marriage equality in California have moved on to the federal courts, challenging California’s (and, by extension, every other state’s) ban on same-sex marriage under the United States Constitution. This strategy is a huge gamble. It has the potential to pay off in the biggest way imaginable: the U.S. Supreme Court holds that marriage is a constitutional right, regardless of the gender of the partners, thus establishing marriage equality everywhere in the U.S., in one fell swoop. Of course, that’s the best-case scenario, and by no means guaranteed.

Of course, that could also give rise to a worst-case scenario: the Supreme Court finds a constitutional right to same-sex marriage, which reignites the push for an amendment to the U.S. Constitution which bans it. Such an amendment would likely take a generation to repeal.
However, an unlikely partnership of attorneys have decided to confront Proposition 8 in federal court head-on: Ted Olson and David Boies have taken the lead in the case. Olson and Boies represented George W. Bush and Al Gore, respectively, in the Supreme Court case of Bush v. Gore (the one that settled the 2000 presidential election, for better or worse). They are now working together in the federal case to overturn Prop 8. Interestingly, Olson continues to identify as a Republican, and has become one of the leading conservative voices in the marriage equality movement.

These lawyers filed a lawsuit in a federal trial court in San Francisco on behalf of a lesbian couple who were refused a California marriage license. The case was assigned (by a random drawing) to Vaughn Walker, the Chief Judge of the U.S. District Court for the Northern District of California. Over the objections of both sides, Walker decided to conduct a full trial on the issue, rather than deciding it solely on the legal arguments presented by both sides. The trial allowed both sides to present evidence and witnesses, and laid the groundwork for a detailed factual record for appellate courts.

On June 16, 2010, a few months after the trial concluded, Judge Walker issued a ruling holding that Proposition 8 violates the Equal Protection and Due Process clauses of the U.S. Constitution, and issued an injunction against enforcing it. Governor Schwarzenegger and Attorney General (and now governor-elect) Jerry Brown, both of whom opposed Proposition 8 and refused to defend it in the federal lawsuit, immediately stated that they would comply with the ruling.

At this point, many people thought that same-sex marriage would once again be legal in California. However, as expected, the defendants (a conservative group that stepped in to defend Prop 8, since the state government didn’t defend it) immediately appealed to the 9th Circuit Court of Appeals. However, the appeals court ordered a stay of Judge Walker’s injunction, preventing it from going to effect.

As disappointing as this was to supporters of same-sex marriage, it was not surprising. If the injunction had gone into effect, and the 9th Circuit then overturned Judge Walker’s ruling, thus banning same-sex marriage again, the resulting confusion would be a big problem. On December 6, the 9th Circuit heard oral arguments on the merits of the case, and its decision is expected in a few months.

Whatever the 9th Circuit decides, the losing side is guaranteed to appeal to the U.S. Supreme Court. What will happen there is anybody’s guess. With the Court’s current composition of 4 liberals, 4 conservatives, and one swing vote, I’d give 50/50 odds on the Court overturning Prop 8. Of course, it’s likely that it will take a few years for this case to even reach the Supreme Court. The Court’s composition could have changed by then. This could make or break a ruling in favor of marriage equality, depending on which justice leaves a vacancy, and who is president at the time.

If the Supreme Court does find a constitutional right to same-sex marriage, it’s impossible to say how the public will react. Some states may refuse to perform same-sex marriages, which could lead to a showdown with the federal government similar to what we saw in the effort to desegregate schools. That seems unlikely, but it’s possible.

John is a writer for LegalMatch.com, and the LegalMatch Law Blog. He can be reached at legalmatch.blogging@gmail.com