Gay marriage: A path to the Court?

By Lyle Denniston
on May 27, 2009 at 4:39 pm

In a new move seeking to put the same-sex marriage issue on a path to the Supreme Court, two gay couples in California have launched an effort to win a right to wed under the U.S. Constitution.  They asked a federal judge in California on Thursday to block any enforcement of California’s “Proposition 8” — a state constitutional amendment that denies marriage to same-sex couples.  The request on Thursday for an injunction followed the filing last Friday of an underlying lawsuit spelling out their constitutional claims.

Theodore B. Olson, a Washington attorney for the couple, told reporters in California that he and others who prepared the lawsuit expected the Supreme Court to hear it ultimately. The maneuver promptly drew criticism from gay rights activists, who argued in a joint statement that the lawsuit was premature. “History says the odds at the Supreme Court now are not so good,” said the nine organizations. Olson, in a news conference along with David Boies, another prominent attorney involved, countered: “We think we know what we are doing.”

The motion for an injunction in Perry, et al., v. Schwarzenegger, et al., can be found here.  The case is docketed in the Northern District of California as 09-2292.  The complaint filed last week is here.  The case has been assigned to Chief Judge Vaughn Walker.

The plea to block Proposition 8 was filed one day after the California Supreme Court had upheld that voter-approved measure, which overturned an earlier ruling by the state’s highest court allowing same-sex couples to marry.  Both of the rulings by the state court were based only on California law, so neither raised an issue under a federal law or the U.S. Constitution and thus could not be tested in a federal court.

But in the new lawsuit in federal court, the two gay couples based their claims solely on the national Constitution.  They claimed that Proposition 8, by singling out same-sex couples for denial of the right to civil marriage, violated their rights to due process and to legal equality.

Proposition 8 says simply: “Only marriage between a man and a woman is valid or recognized in California.”  That provision, the complaint contended, “has created a legal system in which civil marriage is restricted solely and exclusively to opposite-sex couples, and in which gay ahnd lesbian individuals are denied the right to enter into a civil marriage with the person of their choice.”

The due process claim argued that denial of the opportunity for civil marriage, and all of its social benefits, amounted to “stigmatizing gays and lesbians, as well as their children and families” and denies them “the same dignity, respect, and stature afforded officially recognized opposite-sex family relationships.”

The equal protection count contended that Proposition 8 “treats similarly situated people differently by providing civil marriage to heterosexual couples, but not to gay and lesbian couples.”  They are regulated to the “separate-but-unequal” status of “domestic partners,” the lawsuit asserted.

A third part of the lawsuit claimed a violating of federal civil rights law, specifically so-called “Section 1983” that bars official acts of discrimination.

The lawsuit depends heavily upon three Supreme Court rulings — Loving v. Virginia in 1967, striking down state bans on marriage of men and women of different races; Romer v. Evans in 1996, striking down a state constitutional amendment barring equal political opportunity for gays, and Lawrence v. Texas in 2003, providing constitutional protection for private sexual activity by gay couples.

The Court has never ruled on claims to marriage equality for gays.  In fact, the Court said explicitly in the Lawrence case that it was not addressing that question even as it created new privacy protection for gays. 

The Justices probably would not step into the ongoing controversy over gay marriage unless lower courts had split on the issue.  Since no lower court has yet ruled that the national Constitution provides protection for gay marriage, one would have to do so — in the new California case, or some other — before Supreme Court review would be likely.

(Thanks to Alex Koppelman of Salon.com for the tip to this case.)