The US Supreme Court heard challenges to California’s Proposition 8 ban on same-sex marriage on March 26. As the panel in this KQED-TV video discusses, there are essentially five possible outcomes from the Supreme Court’s decision in the case:
- Same-sex marriage bans are constitutional — If the Supreme Court rules this way, the ban will be upheld in 41 states, including California. Individual states would still reserve the right to legalize gay marriage.
- Same-se marriage bans are unconstitutional — This would likely mean the court decided that the 14th Amendment also protects discrimination against gay couples. Every state would have to allow gay couples to marry and provide them with the same benefits as heterosexual couples.
- There is no difference between marriage and civil unions — Also known as the “eight-state solution,” the Supreme Court may decide that states that currently have civil union or domestic partnership laws that extend the same benefits as marriage to same-sex couples would have to keep those laws in place. There would be no legal justification to deny the status of marriage for these couples, and states that already have these laws would keep them in place.
- Same-sex marriage is protected in California —In this scenario, the Supreme Court could affirm the rationale of the appeals court that it is unconstitutional for a state that gave same-sex couples all of the benefits of marriage that opposite-sex couples have and allowed them to be married cannot suddenly withdraw those rights. This decision would apply exclusively to California and would not affect same-sex marriage rights across the rest of the country.
- There is no standing to appeal — In this scenario, the court would decide that the state legislators who normally defend state laws failed to do so in this case, and the Supreme Court could determine the Proposition 8 supporters who filed the appeal had no legitimate reason to be in court. It is possible that this ruling would let the two couples who filed the original lawsuit be allowed to marry, but no one else would and petitioners advocating to legalize same-sex marriage would need to file a class-action lawsuit with all same-sex couples as plaintiffs.
The day after hearing oral arguments in the Proposition 8 case, the Supreme Court heard oral arguments in another high-profile same-sex marriage case about the Defense of Marriage Act (DOMA). DOMA was passed under the Clinton administration in 1996 and restricts federal marriage benefits and marriage recognition only to opposite-sex couples.
As you can see, this is a highly complex situation, but it is important to understand that regardless of the Supreme Court opinions in these matter, California will still have several state laws that prohibit discrimination on the basis of sexual orientation. Please contact our firm for a free evaluation if you have been subject to sexual orientation discrimination at work.
Tip of the week: According to the US Census Bureau, there was an 80.4% growth in same-sex couple households in the US between 2000 and 2010.
Kesluk, Silverstein & Jacob—Los Angeles sexual orientation discrimination attorneys