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Implications of Prop. 8, DOMA Rulings Up for Debate

(UPDATED) Ninth Circuit Court of Appeals rules to allow same-sex marriages to take place immediately.

Update (July 1): The Associated Press reports that Justice Anthony Kennedy has denied a petition from ProtectMarriage, Proposition 8's sponsors, to "halt the issuance of same-sex marriage licenses" in California.

According to a statement from ProtectMarriage, the coalition

filed an emergency petition to U.S. Supreme Court to stop the Ninth Circuit Court of Appeal's premature move requiring same-sex "marriage" licenses in California, weeks before the Supreme Court's decision even goes into effect. The petition, prepared overnight, was submitted Saturday to Justice Anthony Kennedy, the associate justice who decides such motions pertaining to the Ninth Circuit. When the Ninth Circuit originally put in place its stay to prevent same-sex marriage pending Supreme Court action, it stated clearly that "the stay shall continue until final disposition by the Supreme Court." Under Supreme Court procedural rules, "final disposition" comes when the Supreme Court issues a "mandate" to the Ninth Circuit, at least 25 days after announcing its opinion in the case. The 25-day waiting period is provided to allow parties such as Prop 8′s proponents to petition the Supreme Court for a re-hearing of the case.

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Update (June 28): The local CBS affiliate in San Francisco reports that "the U.S. 9th Circuit Court of Appeals ... filed an order late Friday afternoon allowing same-sex marriages to resume in California immediately."

NBC Los Angeles also broke the news that late Friday afternoon.

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Yesterday's much-anticipated Supreme Court rulings on same-sex marriage have legal analysts rushing to interpret the decisions—especially as both supporters and opponents of Proposition 8, California's voter-approved ban on same-sex marriage, are claiming the nation's highest court ruled in their favor.

Shortly after the court ruled that it lacked standing to rule on the Prop. 8 case, proponents of same-sex marriage celebrated as news reports circulated that the ruling "is likely to allow gays and lesbians to marry in the nation's most populous state." According to CNN, "The ruling clears the way for same-sex marriages in California to resume."

Merely a few minutes later, however, opponents released their own statements claiming the opposite. According to CBS News, Andy Pugno of the Proposition 8 Legal Defense fund "suggested the same-sex marriage ban remained in place, (saying) 'We remain committed to the continued enforcement of Prop. 8 until there is a statewide order saying otherwise.' "

Similarly, ProtectMarriage, Prop. 8's sponsors, released a statement saying that the court reversed the federal appeals court's ruling to invalidate the ban, implying that Prop. 8 still stands as law of the land in California. According to the statement,

While it is unfortunate that the Court's ruling does not directly resolve questions about the scope of the trial court's order against Prop 8, (ProtectMarriage) will continue to defend Prop 8 and seek its enforcement until such time as there is a binding statewide order that renders Prop 8 unenforceable.

According to the Wall Street Journal (WSJ), "there remain some legal avenues for those who oppose gay marriage to challenge whether it applies to all California residents."

The debate will center around California trial court judge Vaugn Walker's original ruling in the case. In his decision, Walker said Proposition 8 was unconstitutional and that his decision "applied to all California counties and citizens, even though the lawsuit was filed by just two couples in two counties," WSJ reports.

According to analysis from the Pew Forum,

The Supreme Court's dismissal of the 9th Circuit's ruling...leaves the status of same-sex marriage in California in limbo. While the appeals court ruling has been vacated, the district court's decision that Proposition 8 is unconstitutional remains intact. This means that, at the very least, the two same-sex couples who originally brought the suit against Proposition 8 in district court now will have the right to marry. But it is unclear whether the district court's order gives marriage rights to any other couples, even in the district where this particular court has jurisdiction (the San Francisco Bay Area).

There likely will be legal action on multiple fronts attempting to clarify the status of same-sex marriage across California. This may include additional suits in federal district courts as well as in state courts. In addition, a referendum on whether to repeal Proposition 8 is likely to be on the ballot in California in November 2014.

It also remains to be seen whether or not portions of the Defense of Marriage Act (DOMA) will stand after the court struck down a key portion of it yesterday. The case before the court challenged only Section 3 of DOMA, the portion that defines marriage as "only a legal union between one man and one woman as husband and wife." Now the federal government will recognize same-sex marriages for federal benefits. Yet debate about whether or not Section 2 of DOMA, which says states don't have to recognize other states' same-sex marriages, likely will continue.

The court based its ruling on the principle of federalism, the idea that states are sovereign entities and can determine many of their own public policies. According to Howard Friedman of Religion Clause, states always have had the right not to recognize "foreign marriages that violate a strong public policy of the state." But he also speculates:

Even if Section 2 of DOMA is also unconstitutional, this does not automatically mean that other states must give full faith and credit to same-sex marriages performed elsewhere....Must the federal government continue to respect the marriage valid in the state in which it was performed, even though the state in which the couple now lives refuses to do so? That leads to the "two contradictory marriage regimes" applicable to the same marriage that the Court said it was attempting to avoid by its decision today.

Gabriel Grand of Policy Mic agrees: "The controversial Section 2 of the 1996 Defense of Marriage Act still stands," he writes, lamenting the fact that the section will still allow some states not to recognize same-sex marriages. "Aside from being inherently unequal, having a marital status that varies with geographical location is a legal headache."

Yet as Michael McConnell, director of the Stanford Constitutional Law Center, told CT yesteday, "the rhetoric [of the Supreme Court] suggests that Justice Kennedy is prepared to hold there's a right to same-sex marriage everywhere."

That opens the door for another suit against DOMA to be filed by a same-sex couple with standing in another state. Justices then could rule in support of federal same-sex marriage rights, though it likely would take more than a couple of years for the right case to come along.

When it does, according to Richard Hammar, an attorney and senior editorial advisor for CT's sister publication Church Law and Tax, "a careful reading of the Court's ruling in the DOMA case suggests that it is likely to rule that state statutes and constitutions that preclude same-sex couples from marrying violate the 'equal protection of the laws' provision of the United States Constitution."

Editor's note: This post has been updated.

Posted:June 27, 2013 at 11:10AM
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Implications of Prop. 8, DOMA Rulings Up for Debate