California looks to life without Prop. 8's ban on gay marriage

The Supreme Court essentially let stand a lower court ruling against California's Prop. 8 ban on same-sex marriage. Given shifting public attitudes, Prop. 8 seems unlikely to have another political life.

Eric Risberg/AP
Matt Dunne and Kris Bhat hang a rainbow flag outside Marcella's Pizza shop in San Francisco's Castro district after the US Supreme Court's ruling on gay marriage Wednesday. The court left in place a trial court's declaration that California's Proposition 8 banning gay marriage is unconstitutional.

Reactions to the US Supreme Court’s action on California’s Proposition 8 ballot measure defining marriage as one man and woman under the state constitution came quickly and sharply – rejoicing on the one hand, bitter denunciation on the other.

For now, at least, same-sex couples will again be allowed to marry in California, likely within days. Less likely, given the high court’s action Wednesday and the trend in public attitudes, is a repeat of the ballot measure that sharply divided the state and led to a drawn-out legal battle.

Proponents of Prop. 8 seemed stunned by the US Supreme Court action, which essentially let a US District Court ruling against the measure stand after finding that the case was improperly before the high court. The justices sent the case back to the US Court of Appeals for the Ninth District in San Francisco with instructions for that court to reject the Prop. 8 proponents' appeal "for lack of jurisdiction."

"In a miscarriage of justice the US Supreme Court has refused to consider the decision of a single federal court judge to overturn the perfectly legal action of over 7 million California voters who passed Proposition 8 defining marriage as the union of one man and one woman," said Brain Brown, president of the National Organization for Marriage, the biggest contributor to putting Prop. 8 on the ballot. "The Supreme Court's holding that proponents of an initiative had no legal right to appeal ignores California law and rewards corrupt politicians for abandoning their duty to defend traditional marriage laws.”

In a statement, Mr. Brown angrily noted that the original state court ruling invalidating Prop. 8 was not surprising because the case “was heard by a homosexual judge in San Francisco who himself was engaged in a long-term same-sex relationship.”

Brown called the US Supreme Court decision “illegitimate,” and he said, “We and millions of other Americans will refuse to accept this rogue decision rewarding corruption.”

Andy Pugno, general counsel for, the official proponent of Prop. 8, said he was at least grateful that the Supreme Court had ruled narrowly on the measure – declining to declare the measure unconstitutional as supporters of same-sex marriage had hoped, but focusing instead on the question of legal standing for Prop. 8 supporters.

“We 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,” Mr. Pugno said in a statement.

Tony Perkins, president of the conservative Family Research Council, says the ruling “distorts the balance of powers between the legislative, executive, and judicial branches of government.”

“The Court's decision allows the executive branch to effectively veto any duly enacted law, simply by refusing to defend it against a constitutional challenge,” Mr. Perkins said in a statement Wednesday, referring to the decision by Gov. Jerry Brown and Attorney General Kamala Harris (both Democrats) to refuse to stand up for Prop. 8 in court.

At this point, opinions about the future of any Prop. 8 repeat are as divided as public attitudes about gay marriage.

“This is far from over, I can tell you,” Chapman University law professor John Eastman, who supports the same-sex marriage ban, told the Los Angeles Times.

But Santa Clara University law professor Gerald Uelmen, an expert on the state constitution, told the LA Times, “I think they would be laughed out of state court.”

Prop. 8 was a 2008 ballot measure that passed by 52 to 48 percent, with some seven million Californians voting in favor in a high-turnout election (79 percent).

But in the five years since then, public attitudes have moved toward more public support for gay marriage – a majority of Americans, according to recent polls – and it seems unlikely that Californians would want to go through that politically and socially wrenching exercise again.

In California, support for same-sex marriage has climbed to 59 percent, according to a recent Public Policy Institute of California poll – higher than the national average of 55 percent in a Washington Post-ABC News poll. (Both polls were issued last month.)

Attitudes are “changing quickly,” says Attorney General Harris.

“More and more Californians are starting to understand that these couples are their family members, their neighbors, people who are leaders in their community, people who otherwise are in every way respected,” Harris said at a press conference Wednesday morning. “We cannot as a civil society treat them differently because of the choices they make about who they love and want to marry.”

Governor Brown was quick to move once the court decision was known, ordering officials in California’s 58 counties to begin issuing marriage licenses to same-sex couples as soon as the Ninth Circuit lifts its stay on the District Court ruling. (Both courts had found in favor of Prop. 8 opponents, but the appellate court put a hold on same-sex marriages in California while the US Supreme Court heard arguments and considered the case.)

In San Francisco, Los Angeles, San Diego, and other major cities Wednesday, supporters of gay marriage celebrated.

Hundreds of people gathered at San Francisco City Hall, including Mayor Ed Lee and former mayor (now lieutenant governor) Gavin Newsom, as news of the high court’s decision was announced.

As some already-married gay couples rejoiced at Harvey Milk Plaza in the city’s Castro District, others said they would soon get hitched, the San Francisco Chronicle reported. People hugged, wept, blew bubbles, donned costumes, and waved rainbow flags amid the honks of passing cars, ambulances and police cruisers.

"This country has changed and we are really seeing that change today," said Brandon Brock as he stood alongside his husband, whom he married two years ago in New York. "And man, what a day!"

Even though the Supreme Court’s decision in the Prop. 8 case was not sweeping, it represents “a major victory for marriage equality,” says Adam Winkler, a professor of constitutional law at UCLA.

“Today, only 18 percent of the American population resides in a jurisdiction allowing same-sex marriage,” Mr. Winkler writes in a Daily Beast column. “Once California turns, however, that number rises to 30 percent. Marriage equality in California will also mean that nearly 40 percent of the nation’s 650,000 same-sex couples will live in places where they can marry.”

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