by Gregg DesElms
Artical seeded, and the below written/posted on: Wed Jun 26, 2013 at 11:27 AM PDT
Today, the Supreme Court of the United States (SCOTUS), in effect, sorta' kinda' defacto upheld the the lower Federal District Court's ruling that Prop 8 is unconstitutional (though it was not really a direct upholding of it, and, instead, was ruled on a procedural technicality), thereby making same-sex marriage legal, again, in California. Additionally, SCOTUS struck-down a section of the Defense of Marriage Act (DOMA) which kept same sex marriages from being recognized for federal purposes.
It's a victory, but not the one most wanted. For those unclear about exactly what's happened...
In 2000, Prop 22 made it state statutory law that "only marriage between a man and a woman is valid or recognized in California." In May of 2008, the California Supreme Court ruled that that was unconstitutional; and that same-sex marriage should be allowed in California. And so, starting in June of 2008, both clergy and sworn Deputy Commissioners of Civil Ceremonies for one or more of the various counties in California, like me, commenced officiating over same-sex marriages; and we continued to do so all summer and into the fall of 2008, getting in as many as we could; even traveling to conservative counties where officials were against it and, therefore, slowing the process, to marry couples there, anyway, wherever and whenever we could, before Prop 8 was voted on in the 2008 general elections in November.
Prop 8, proffered by conservatives, and its campaign largely paid for by the Mormon Church, was a ballot measure which, if passed, would take the language of 2000's Prop 22 and add it as a state constitutional amendment prohibiting same-sex marriage in California. During the run-up to the November 2008 general elections, many of us feared that Prop 8 would pass. And it did. So long was the line of people to get married at the last minute in the county where I was officiating on election day that at around 4:30 PM we gathered all remaining couples in the county council chambers, and I stood up on the dais and performed a Sun-Myung-Moon-esque mass wedding ceremony, and then spent the next hour filling-out and signing paperwork as the happy couples sat in the chamber's audience chairs, beaming and crying and celebrating while waiting for their names to be called so they could collect their paperwork and leave to begin their honeymoons.
A few hours later, I, for one, literally wept, both in happiness because the first African American President of the United States had been elected, and also in sadness because Prop 8 had passed. Because Prop 8 would take effect quite literally the next day (November 5, 2008), I had, then, on election day, been among those across the state who had officiated over the very last of the California's same-sex marriages for what today's SCOTUS ruling would determine to be the next five years.
The California Supreme Court later (and surprisingly) upheld Prop 8, but ruled that all same-sex marriages up to and through November 4, 2008 were valid. So all of those same-sex marriages over which I officiated between June and November 2008 -- including what I casually refer to as my "Moonie" wedding ceremony on election day on November 4, 2008 -- would stand, just as I had assured every single one of those couples all summer long would likely be that case. Nothing in any of the rulings since has changed that.
And so, those on our side, who were (and remain) against Prop 8, and in favor of same-sex marriage, appealed the California Supreme Court ruling to the US Federal District Court. Federal District Judge Vaughn Walker ruled that Prop 8 was, in fact, unconstitutional; that it violated both the Due Process and Equal Protection clauses of the United States Constitution. And so, technically, same-sex marriages could have resumed in California right then and there, except that Walker issued a stay against anyone doing anything -- against either same-sex marriages resuming, or Prop 8 being enforced -- until all appeals had been exhausted (since all parties had told the Court that they would take the matter all the way to SCOTUS if they had to).
At that point is when the Pro-Prop-8 folks made what SCOTUS's ruling, today, has determined to be their tactical error. Because Prop 8 was by then California state law, the both logical and only lawfully correct party to appeal the Federal District's ruling up to the US 9th Circuit Court of Appeals was its then-attorney-general (now governor), Jerry Brown. However, Brown agreed (and agrees, still) that Prop 8 was, indeed, unconstitutional -- that the Federal District was correct -- and so Brown refused to appeal it. And so Prop 8's supporters thought that they could just step-in and do what Brown had refused to do. Today's SCOTUS ruling determined that they were wrong.
Prop 8's supporters appealed the Federal District's ruling to the Federal 9th Circuit Court of Appeals, which also agreed with the lower Federal District that Prop 8 was unconstitutional; and so Prop 8's supporters then took it to SCOTUS. Arguments before SCOTUS on the matter were heard this past March of 2013. SCOTUS's ruling was expected in June (this month); and so every Monday and Thursday (the days on which SCOTUS tends to issue its rulings) of this month, we have awaited SCOTUS's ruling on Prop 8. Today -- on a non-traditional and unexpected Wednesday -- it finally came.
What we who were against Prop 8 had hoped for was that SCOTUS would rule in a way which effectively struck-down all state prohibitions of same-sex marriage in all 50 of the US states; but most of us knew that that was unlikely. At this writing, seven US states prohibit same sex marriage by statute, and 30 prohibit it by means of Prop-8-like state constitutional amendment. Only 13 US states -- California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington (plus the District of Columbia, and five Native American tribes) -- have legalized same-sex marriage. Had SCOTUS ruled, today, as we had hoped, all prohitions of same-sex marriage, everywhere, would have been struck down by its ruling on Prop 8, today. But, alas, SCOTUS's ruling, today, was not that sweeping.
As many of us predicted would happen, what SCOTUS ruled regarding Prop 8, today, simply, was that Prop 8's supporters had no legal standing to step-in and try to do what Jerry Brown originally refused to do; that since Prop 8 was, by then, state law, only the state, itself, represented by its attorney general (Jerry Brown), could lawfully appeal the California Supreme Court's ruling which struck down Prop 8. And so, SCOTUS basically returned the matter -- it "punted" it, some say -- back down to what the lower Federal courts had ruled: that Prop 8 was unconstitutional.
SCOTUS's ruling, today, had no impact, at all, on any other state. It did not, as we had hoped, strike down the Prop-8-like constitutional amendments prohibiting same sex marriage in the 30 states which have them; and/or, by inference, invalidate the statutory prohibitions of same-sex marriage in the seven states which have those. Instead, today's SCOTUS ruling simply found that there had been a procedural error on the part of Prop 8's supporters; that they never had any legal standing to do what Jerry Brown, as California's attorney general back then, refused to do; and so, then, the Federal District Court's ruling stands, and becomes, officially, the law of the State of California...
...and so same-sex marriages may begin, again, in California. However, because of the Federal District Court's original stay on either the enforcement of Prop 8, or the resumption of same-sex marriage after its ruling which struck it down, it could be as long as 30 days from now before same-sex marriages actually resume in California. But, resume they will; and for that, it's a good day.
Sadly, for now, at least, whether or not same-sex marriage is legal in the other 49 states is entirely up to said states. Again, today's SCOTUS ruling doesn't change anything for the 37 US states where same-sex marriage is currently illegal...
...er... well... not directly, at least. You see, the ultimate precedent set by the Federal District Court which ruled that California's Prop 8 was unconstitutional, and SCOTUS's ruling today which doesn't undo that, now swings wide the gates of opportunity for same-sex marriage proponents, in the 37 states where it's currently illegal, to make the same kinds of arguments in their local Federal District courts as were made in California's; and to try, then, to get those courts to rule that their states' anti-same-sex-marriage either statutes or constitutional amendments are just as unconstitutional, and for the same reasons, as California's Federal District Court ruled that Prop 8 was unconstitutional.
And so, then, the very thing that SCOTUS avoided ruling on, today, by effectively "punting" the constitutionality (or not) of such as Prop 8 back to the lower courts on the procedual technicality of that Prop 8's supporters had no standing in the first place, will eventually get heard by SCOTUS again when the various state cases on the constitutionality of prohibiting same-sex marriage are appealed to their appropriate Federal both District Courts, and then Circuit Courts of Appeals; and then, ultimately, to SCOTUS. SCOTUS, by then, will have no procedural technicality to use as a means of not actually ruling on the issue; and so what we believe to be the unconstitutionality of laws which prohibit same-sex marriage will finally be determined by SCOTUS, as we were hoping that SCOTUS would do, today. At that point, the laws prohibiting same-sex marriage in any state where they exist -- in all 37 of the ones where they exist at this writing, and in any others which subsequently jump on that misguided bandwagon -- will likely be summarily overturned, and same-sex marriage will become the law of the land everywhere! But that will take some years... SEVERAL years, in fact... five or more years, at least, just as it took that long to get California's Prop 8 before SCOTUS... possibly even longer.
The OTHER thing that SCOTUS ruled, today, though, is, in some ways, even bigger. And what it ruled is not only that for which we had hoped, but it's exactly what most court watchers predicted, to wit: SCOTUS struck down section 3 of the Defense of Marriage Act (DOMA). DOMA is a 1996 federal law, proffered by conservatives and signed into law, surprisingly and disappointingly, by then President Bill Clinton, a Democrat... one who has become even more left-leaning since leaving office, but was sufficiently left-leaning, even back then, that it surprised at least some of us that he didn't put up a least a little bit of a fight against DOMA by initially vetoing it. Then again, "Don't Ask, Don't Tell" (DADT) became policy in the US military under Clinton... so... there ya' go.
DOMA allows states to refuse to recognize other states' same-sex marriages; and, until section 3 of DOMA was ruled unconstitutional by SCOTUS, today, it also allowed the non-recognition of same-sex marriages for all federal purposes, including insurance benefits for government employees, Social Security survivors' benefits, immigration, and the filing of joint federal tax returns. In subsequent years, Clinton has reversed his position on DOMA, and has called for its repeal. The Obama administration agrees, and has said that its US Attorney General's Office would no longer defend DOMA in court (although it assured that since DOMA is law, it would continue to be enforced until it ever ceases to be law), thereby necessitating the US House of Representatives to order the House General Counsel to get out there and defend DOMA on behalf of the United States government in various court cases -- including before SCOTUS in arguments this past Spring -- in place of the US Attorney General's Office.
Section 3 of DOMA has already been found unconstitutional by eight Federal District Courts, and also by the 1st and 2nd Circuit Courts of Appeals at least with regard to bankruptcy, public employee benefits, estate taxes, and immigration. Today's SCOTUS ruling struck-down DOMA's section 3 in its entirey, as what SCOTUS ruled was "a deprivation of the equal liberty of persons that is protected by the Fifth Amendment."
What this means is that marriages in states where same-sex marriage was legal at the time of said marriages, and all future legal same-sex marriages, will be recognized for any and all federal purposes, including insurance benefits for government employees, Social Security survivors' benefits, immigration, the filing of joint federal tax returns, bankruptcy, estate taxes and immigration, among other things.
That, actually, is an absolutely HUGE decision... bigger, in many ways, than the Prop 8 part of today's SCOTUS rulings. It means that every single legally-married same-sex couple in the United States, no matter where they live, may now enjoy all the same legal benefits of marriage which heterosexual couples have enjoyed for decades.
For California couples, though, today's two SCOTUS rulings mean that there is now no effective, functional or legal difference, in California, between same-sex married couples, and heterosexual married ones. The legal rights and responsibilities of both same-sex and heterosexual couples are now identical in California, for purposes of both getting married, and all the concomitant legal benefits and responsibilities thereof. Period.
It is, then, a good day in California on account of both of today's SCOTUS rulings; and a good day, throughout the rest of the US, on account of the DOMA-related one of them.
KHALIL GIBRAN: "Progress lies not in enhancing what is, but in advancing toward what will be."
BARACK OBAMA: "If you're walking down the right path and you're willing to keep walking, eventually you'll make progress."
MARTIN LUTHER KING, JR.: "Human progress is neither automatic nor inevitable... Every step toward the goal of justice requires sacrifice, suffering, and struggle; the tireless exertions and passionate concern of dedicated individuals."
To progress, however slowly it moves.
Gregg L. DesElms
Napa, California USA
gregg at greggdeselms dot com