Constitution Daily

Smart conversation from the National Constitution Center

Constitution Check: Where does same-sex marriage go from here?

June 27, 2013 by Lyle Denniston


Image via Chris Walton/Flickr.
Image via Chris Walton/Flickr.

Lyle Denniston looks at the next steps in the legal campaign to secure the nationwide right for gays and lesbians to get married.


“Sandy [Stier] and I want to say how happy we are, not only to be able to return to California and finally get married, but to be able to say to children in California that no matter where you live, no matter who your parents are, no matter what family you are in: you are equal, you are as good as your friends’ parents and as your friends.”

 – Kristin M. Perry, of Berkeley, Calif., in a statement Wednesday about the Supreme Court decision in the same-sex marriage case about California’s Proposition 8 – a case that bears her name, Hollingsworth v. Perry.  She plans to marry another woman involved in the case, Sandra B. Stier, also of Berkeley.

“While it is unfortunate that the court’s ruling does not directly resolve questions about the scope of the trial court’s order against Proposition 8, we will continue to defend Proposition 8 and seek its enforcement until such time as there is a binding statewide order that renders Proposition 8 unenforceable.”

 – Andrew Pugno, general counsel of Project Marriage, the organization that was the principal sponsor of the ballot measure, Proposition 8, in a comment Wednesday on the Supreme Court decision.  The measure amended the California constitution to limit marriage to a man and a woman.


In the great rush of excitement over the most promising constitutional development in history for the cause of same-sex marriage, emerging in a pair of decisions by the Supreme Court on Wednesday, one basic fact got a bit obscured: there still is no nationwide right for gays and lesbians to get married.

As of now, gays and lesbians in 12 states have, or will soon have, a right to wed, but that is based upon state laws or state court rulings not what the Supreme Court said or did.   Soon, California will become the next (13th)  – and the largest – state to permit such unions.   And that will be due to a lower court’s constitutional ruling in favor of same-sex marriage – although that is a decision that does not extend beyond the borders of California.

County clerks across California probably will soon begin issuing marriage licenses to same-sex couples.   That could occur even though the Supreme Court explicitly refused, on Wednesday, to rule on the constitutionality of the state’s ban on those unions (the ban came in a state constitutional amendment approved through “Proposition 8” by state voters in 2008).

This takes some sorting out.  Even so, the complexity – and there is a good deal of it -- does not detract from the very real fact that the plea to confer constitutional equality on gays and lesbians has now come closer to reality in America than at any time in the four decades since that equality movement began with the angry protests outside the Stonewall Inn, a bar in New York City’s Greenwich Village, in June 1969.

The Supreme Court has now ruled unconstitutional a 1996 law that, the court’s majority found, was based on anti-homosexual sentiment in Congress, triggered by the earliest hints that some state might begin recognizing a marital right for gays and lesbians.   Despite earlier signs that the decision against the Defense of Marriage Act might be based upon a fairly narrow theory of states’ rights to regulate the institution of marriage, the final ruling was actually based on notions of constitutional equality.  (The DOMA law fell in the case of U.S. v. Windsor.)

True, it was constitutional equality for same-sex couples only if they already were married, and living in states that allowed them to be wed.  And, true, the Supreme Court did not spell out what kind of legal test a law against gay equality would have to pass, whether such a law dealt with marriage or some other legal benefit.   Even so, it was a constitutional gain in court that seemed to mirror the nation’s apparently more tolerant attitude about homosexuality.

The next logical step, constitutionally speaking, would seem to be to answer the question: Can a state ban same-sex marriage, or must it accept marital equality?   That is the question that the sponsors of California’s “Proposition 8” had wanted the court to answer, in the other case, Hollingsworth v. Perry.  But the majority of the Justices ruled that those sponsors did not have enough at stake for themselves in the controversy that they could clear the first obstacle to suing in federal court – that is, proof that they would be personally harmed if the measure were struck down.  In other words, they had no legal right, under the Constitution’s Article III spelling out federal courts’ authority, to take their appeal to the Supreme Court.

 Through a complex set of procedures that will now start to unfold in lower courts, the actual constitutional fate of marriage in California will begin to get clarified.  The most likely outcome, and it could happen in no more than a few weeks, is that a 2010 decision by a federal judge in San Francisco finding Proposition 8 to be unconstitutional would be put into full effect (without the Supreme Court’s blessing).  And with that, marriage licenses would become available for same-sex couples.   Kristin Perry and Sandra Stier then may be legally free to get married.

Since the Supreme Court has not settled on whether marriage equality is protected as a general constitutional proposition, the process of pursuing that equality in states other than the 12 that already recognize it, plus California, will go back to being a legal campaign in legislatures and courts, one state at a time.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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