Prop 8 at the Supreme Court

Posted: April 5th, 2013 | Columns, Featured, Legally LGBT | No Comments

Paul McGuire | Legally LGBT

The Supreme Court of the United States recently heard oral arguments on DOMA and Proposition 8. Because Prop 8 remains more difficult to predict after oral arguments, I will focus on it.

Paul McGuire

Paul McGuire

There are five options the Court has to resolve Prop 8. First, they could decide that the official proponents of Prop 8 do not have standing. This would be a way of saying that they have no good reason to be allowed to defend Prop 8 any more than the general public. The difficulty with this outcome is that it would leave the state attorney general with the power to refuse to defend a proposition. This is troubling because the point of the proposition process is to give the people the power to pass laws that the government doesn’t want to.

From the arguments, it seems a number of justices were concerned about this result. If the Court finds a lack of standing, it would leave the original court decision as the only one. It is unclear if this would be limited to the original parties or if Prop 8 would be invalidated throughout California, thus broadly allowing same-sex couples to marry.

Second, the Court could dismiss the case and say that they shouldn’t have agreed to hear it in the first place. This doesn’t seem very likely but would affirm the Ninth Circuit’s limited ruling.

Third, the Court could decide that it is unconstitutional to deny marriage when a state offers civil unions or domestic partnerships because it creates a situation of separate but equal. From the arguments, it seems many of the justices are concerned with such a result because it would penalize states for recognizing same-sex couples.

The attorneys making this argument seemed unable to provide a convincing answer to the justices for why they thought this made sense. After all, same-sex couples in states that don’t provide civil unions or marriage are left without any benefits, state or federal.

Fourth, the Court could broadly declare same-sex marriage a right and require all states to recognize it. Fifth, the Court could uphold Prop 8 as a valid exercise of the traditional rights of the state to define marriage. I discuss these together because there is a split between the liberal justices who seem ready to support marriage equality and the conservative justices who view same-sex marriage as a novel idea that would be too early to support.

Once again, Justice Anthony Kennedy is the deciding vote. It is unclear which direction he will take. He appeared to express some concern that the idea of same-sex marriage is relatively new but at the same time recognized that there are a lot of children raised by same-sex couples who could benefit from the added stability of marriage.

Between the liberal and conservative view is a big distinction of their understanding of the role of the courts and the structure of our system. The conservative justices value the rights of states to experiment with social changes before applying it to the entire country. Thus they might rule in a way that allows the debate on same-sex marriage to continue. Many of the conservative justices seemed concerned that allowing same-sex couples to marry would fundamentally change the meaning of marriage.

The liberal justices view the Court’s role more broadly and as a tool to prevent injustices. They appeared already convinced that discrimination against same-sex couples is improper without a good reason. The supporters of Prop 8 were unable to articulate any harm that would result if same-sex couples were allowed to marry. Many of the arguments made by the proponents focused on the connection between marriage and procreation, but the liberal judges were not convinced.

With so many different ways to decide the case, it is hard to predict the outcome. What does seem likely is either a decision that Prop 8 is constitutional or a decision that all states are required to recognize marriage equality. No matter what happens, it will likely leave many questions unanswered.


—Paul D. McGuire is an openly bisexual family law attorney in San Diego who assists families dealing with dissolution of marriage and domestic partnerships. He writes a blog on family law and LGBT issues at

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