Supreme Court’s Historic Ruling Expected to Lead to Same-Sex Marriage Again in California

Defense of Marriage Act Supreme Court Prop 8
Win McNamee/Getty Images

Same-sex marriage was expected to resume in California, after the Supreme Court ruled that defenders of Proposition 8 lacked standing to challenge lower-court rulings that the state’s ban on same-sex marriage was unconstitutional.

In another ruling with even greater reach, the high court decided 5-4 that a key provision of the Defense of Marriage Act was unconstitutional on equal protection grounds, with Justice Anthony Kennedy and the court’s four liberal justices joining in the majority.

The ruling on Prop 8 came after a long effort by a group of Hollywood and political activists to challenge California’s initiative. A 5-4 majority of the high court found that defenders of Prop 8 lacked standing to pursue an appeal of a district court decision in 2010 that declared the initiative unconstitutional. California’s then governor, Arnold Schwarzenegger, and attorney general, Jerry Brown, refused to defend the initiative after that ruling, leaving the question of standing in doubt.

There is now expectation that same-sex marriages will resume in the state, although there may be further litigation that could delay the nuptials and raise questions on whether licenses can still be denied to same-sex couples in certain counties. After the ruling, Brown, the current governor, ordered counties to begin issuing licenses to same-sex couples as soon as the 9th circuit lifts a stay on district court decision, expected to be in about 25 days.

The DOMA decision carries far-reaching consequences, as the high court ruled that the 1996 law that prevents the federal government from extending benefits to same-sex couples violates the Constitution.

“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” Kennedy wrote in the majority opinion. “By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.” It means that same-sex married couples will be entitled to federal benefits like Social Security and tax privileges.

The court’s rulings fell short of declaring a constitutional right to same-sex marriage. “The Court does not question California’s sovereign right to maintain an initiative process, or the right of initiative proponents to defend their initiatives in California courts,” Chief Justice John Roberts wrote in the majority opinion. “But standing in federal court is a question of federal law, not state law.” Although the decision was on procedural grounds, supporters of same-sex marriage said it was significant because it meant that the defenders could not show that they suffered harm from gay nuptials.

“This is a wonderful day for everyone around this country and everyone in California who wants to marry the person they love,” David Boies, the attorney for two couples who challenged Prop 8, said on the steps of the Supreme Court on Wednesday, shortly after the rulings were issued.

The high court’s decision marks a coda to the four-year effort that was launched by a group of Hollywood and political activists to strike down Proposition 8 in the federal courts. In November, 2008, after the passage of the state’s ban on same-sex marriage, Rob Reiner and his wife Michele were having brunch at the Beverly Hills Hotel with with political consultants, Chad Griffin and Kristina Schake. They all had been involved in the fund-raising effort for the No on 8 campaign, but were reluctant to pursue another election where the question of same-sex nuptials was on the ballot. Instead, at the brunch, they ran into a friend of Michele Reiner’s who tipped them that Ted Olson, the conservative former solicitor general, was an ally on the issue.

They contacted Olson, and soon planned for the filing of a federal suit challenging Proposition 8 on equal protection and due process grounds. Olson helped enlist Boies, his counterpart in the landmark Bush vs. Gore decision in 2000.

The federal suit was filed in May, 2010, with some $3 million in seed money for the legal effort coming from media mogul David Geffen and producer Steve Bing. The group also formed a non-profit, the American Foundation for Equal Rights, to pursue the case, with a mix of show biz and political activists on its board of directors. That org includes screenwriter Dustin Lance Black and producer Bruce Cohen among its board members, as well as Ken Mehlman, the former chairman of the Republican National Committee who came out publicly in 2010.

Black wrote on Twitter on Wednesday morning: “PROP 8 IS DEAD. Marriages WILL begin again in CALIFORNIA!”

Cohen noted that the goal of the American Foundation for Equal Rights was to defeat Prop 8 and to see full marriage equality across the country. “We are halfway to our goal this morning,” said Cohen, also adding that the decision on federal benefits was a landmark because it for the first time meant a recognition of same-sex marriages at the federal level.

“We are thrilled,” Cohen said. “It is a pretty extraordinary day for LGBT families in California.” He and his partner, Gabe Catone, were married at City Hall in May, 2008, with Los Angeles Mayor Antonio Villaraigosa officiating. Cohen produced “Milk,” and was in San Francisco on Wednesday where he is producing a choral performance of “I Am Harvey Milk.”

Watching coverage of the Supreme Court today, once viewed as a far off and perhaps risky goal, he said that he was still amazed at the long effort to defeat the initiative. “To realize that Prop 8 is gone, I absolutely do not have my head around it,” he said.

The money that entertainment industry figures was met by a flair for publicity, capitalizing or even helping driving the momentum on the fast evolving issue. Black wrote a play, “8,” based on the 2010 district court trial proceedings in San Francisco, which ended with U.S. District Judge Vaughn Walker ruling that California’s ban on same-sex marriage as unconstitutional. The play “8” was performed at a benefit last year, with George Clooney and Brad Pitt among the cast, and it has been staged at high schools and college campuses across the country.

Jeff Zarrillo, a plaintiff in the Prop 8 case who now plans to marry his partner, Paul Katami, said on the steps of the Supreme Court on Wednesday that the case “created a groundswell of momentum and passion that brought us to the Supreme Court here today.” At the press conference, he was joined by Katami, who proposed to him before reporters. President Obama called the plaintiffs to congratulate them.

But a significant legacy of Hollywood’s involvement in the case also may have been the dream-casting of Boies and Olson as lead attorneys, a message that the issue was so fundamental that it crosses partisan lines, and a team that only added to the attention that was paid to the case in its early stages. Olson’s contacts in particular helped draw in Mehlman, who in turn helped raise Wall Street money and draw in other conservatives to their cause. Among the dozens of Republicans and conservatives who signed on to a brief in February, urging the court to overturn Prop 8, was Clint Eastwood.

Meanwhile, the Walt Disney Co., Viacom and CBS were among the hundreds of companies to sign on to a friend-of-the-court brief urging the Supreme Court to abandon the Defense of Marriage Act. They argued that the denial of benefits to same-sex couples created confusion and extra expense, and also hurt recruitment of top talent.

Update: After a rally on Wednesday evening in West Hollywood, Ted Olson suggested that the legal effort would continue, as roughly 70% of the country still live in states with bans on same-sex marriage. “We are going to take this one step at a time,” he said. “This is one huge, giant step, but it is not over.”

As thousands celebrated in the streets and at bars and nightclubs, Olson said, “If people can see what I am seeing, all these wonderful, happy people, how can you not be on their side?”

He did note that a legacy of the case was the shift in public opinion. It was the fact that people thought it was enough of a novelty that they were willing to listen to us, and if people listen to us, they will understand, they will at least think about it.”

He added, “I think it is because people start looking around and who they are and what their country is, who their neighbors are, who their friends are, and they ask themselves, ‘Why shouldn’t they be happy, or unhappy? Why shouldn’t they have the same rights and the same freedoms as I do. There is something wrong with our hearts when we are not treating gay and lesbian citizens with the same quality and decency as the rest of us.”

Asked why the Republican party has not shifted, Olson, a conservative, noted that more than 100 prominent GOP officials had signed on to an amicus brief in the case, and many corporations supported it as well. “They wouldn’t have come near that brief four years ago,” he said. He acknowledged that there were many more minds to convince. “Rome wasn’t built in a day.”