The journey for marriage equality continues. The Supreme Court of the United
States of America (SCOTUS) agreed to hear oral arguments on the Proposition 8
and DOMA case on the merits. Trikone now patiently waits until SCOTUS hears oral
arguments about these cases. Many marriage equality advocates were hoping that
SCOTUS would decide not to hear the Prop 8 case. If SCOTUS had denied certiorari
(i.e. decided not to hear the case), then the stay on the 9th Circuit’s decision would
have been lifted, and same sex couples could start getting married. However, now
that SCOTUS will hear the Prop 8 case, the stay order will remain in effect.
When SCOTUS listens to the Prop 8 oral arguments, they will consider the merits of
Proposition 8 and the technical issue of whether the proponents of Prop 8 had the
right to pursue their case. The merits of the Prop 8 case essentially look at whether
the Equal Protection Clause of the 14th amendment prohibits the California from
defining marriage as the union of a man and woman. Trikone hopes that SCOTUS
will decide that defining marriage exclusively as between a man and a woman is
SCOTUS may choose to only examine the issue of whether the proponents of Prop
8 had the right to pursue their case (i.e. legal standing). When the case was first
filed, the Petitioners were suing California officials for violating the Equal Protection
Clause by defining marriage between a man and a woman. The California officials,
including Governor Brown and Attorney General Kamala Harris, agreed that Prop
8 violated to the Constitution and would not oppose the petitioners. However, non-
governmental backers (i.e. proponents) of Prop 8 were allowed to come in and
argue for Prop 8. SCOTUS will decide if it was acceptable to allow the proponents to
come in and stand in the place of the California officials. SCOTUS could potentially
decide that the Prop 8 proponents did not have standing. If SCOTUS decides that
the proponents did not have standing, SCOTUS would not even need to decide the
merits of the case and the stay on the 9th Circuit’s order to strike down Prop 8
would be lifted.
Similar to the Prop 8 case, SCOTUS agreed to hear oral arguments on the merits
issue of the constitutionality of DOMA Section 3 and also whether the Executive
Branch could bring its appeal and that BLAG (Bipartisan Legal Advisory Group)
lacked standing.
Trikone anticipates that SCOTUS will hear the oral arguments for the Prop 8 and
DOMA case between March 25-27, and a decision is very likely around June 27. The
bottom line is that SCOTUS could make a decision on Prop 8 and DOMA Section 3,
but they have left themselves an out on the technical standing issue in both cases.
With the recent additions of marriage equality in Washington, Maine, and Maryland,
Trikone hopes that SCOTUS takes note and strikes down Proposition 8 and DOMA.
For Trikone Advocacy,
Monica Davis and Harsha Mallajosyula
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