EQCA
Equality California
Prop 8. Frequently Asked Questions

Prop. 8 Frequently Asked Questions

When will the U.S. Supreme Court rule on the Prop. 8 case?

The U.S. Supreme Court heard arguments on the Prop. 8 case on March 26th. And it heard arguments on the DOMA case on March 27th. We expect the Supreme Court to rule on Prop. 8 by the end of June. Until then, a continuance of the stay on marriage is in place, and no loving, committed couples are able to marry at least until the decision is given.

What exactly is the Supreme Court reviewing?

The Supreme Court is considering the Prop. 8 decision made by the Ninth Circuit court. We’re confident both in our arguments and that the court will give them a fair hearing.

What are the most likely outcomes?

The Supreme Court could decide to strike down Prop. 8, uphold Prop. 8, or decline to rule on the case’s merits. There are a number of different grounds on which it could decide to strike down Prop. 8 or decline to rule on the case’s merits. Following are six potential outcomes: 

DECLINE TO RULE

  • Dismissed as Improvidently Granted (DIG) – The Supreme Court could decline to rule on Prop. 8 on the grounds that it should not have accepted the case. This decision would restore the freedom to marry in California. No more appeals would be available to the proponents of Prop. 8. The ruling from the Ninth Circuit Court of Appeals would stand, affirming the earlier federal trial court decision by Judge Vaughn Walker that Prop. 8 is unconstitutional.

  • No Standing – The Supreme Court could decline to rule on the case on the grounds that Prop. 8 proponents don’t have the legal right, or standing, to defend it in federal court. This decision would also restore the freedom to marry in California. It would vacate the ruling of the Ninth Circuit Court of Appeals and leaves in place the federal trial court ruling of Judge Vaughn Walker, who invalidated Prop. 8 in 2010, concluding that the measure violates the Constitution’s guarantee of equal protection and the fundamental right to marry.

RULE ON THE MERITS OF THE CASE

  • Uphold Prop 8 as Constitutional – California and other states can continue to exclude same sex couples from the institution of marriage.

  • Nationwide Freedom to Marry – Gays and lesbians have a constitutional right to marriage, bringing the freedom to marry to all 50 states.

  • Separate But Equal Is Unconstitutional (“Seven State Ruling”) – The Supreme Court could rule that states offering civil unions or domestic partnerships but banning marriage for same-sex couples are violating the equal protection clause of the Constitution and must recognize and implement marriage for same-sex couples. This would result in the freedom to marry being granted to same sex couples in the seven states with civil unions or domestic partnerships: California, Colorado, Hawaii, Illinois, Nevada, New Jersey, and Oregon.

  • California Only – The Supreme Court could rule that a state cannot revoke a right that it has already granted to its citizens. In this case, the freedom to marry would return to California but would not be extended to other states. 

How likely is the freedom to marry to prevail?

We’re confident in our arguments, and that the court will give them a fair hearing. No one understands as well as us how this arduous process impacts loving, committed couples, but fundamentally this process is worth respect as a process. Second-guessing or offering predictions now would be irresponsible — we will know more soon.

Does this case affect other states?

It depends on how the court rules. California is in a unique position, having had the freedom to marry recognized, then taken away, and the 9th Circuit Court’s ruling was very narrow. The court can either affirm that decision or rule more broadly, and their ruling can set the standard for review on similar cases, e.g. strict scrutiny or rational basis tests for constitutionality.

How quickly would marriage be restored in California in the above scenarios?

If the Supreme Court rules that Prop. 8 is unconstitutional (scenarios 4-6 above), the proponents of Prop. 8 will have 25 days to petition for rehearing once the decision is issued. If the proponents do not do so, the Supreme Court’s decision becomes final and marriages could resume as soon as state officials process the necessary orders. If they do petition for rehearing and it’s granted, the Court’s decision will be stayed while the Justices consider the petition.

If the Supreme Court determines that it shouldn’t have granted review of the case (scenario 1), marriages will resume as soon as the Ninth Circuit Court issues its mandate and state officials process the necessary orders.

If the Court determines that the Prop. 8 proponents lack standing to defend the case (scenario 2), marriages will resume in California as soon as the District Court’s judgment takes effect and state officials process the necessary orders.

What are the ballot plans should the Supreme Court uphold Prop 8?

Equality California continues to use a public education campaign to win hearts and minds in the Californian public. We do not want to speculate on an outcome, but should the Supreme Court uphold Prop 8 as constitutional, all options will be on the table. Equality California, together with our coalition partners, will continue to monitor the political climate, public opinion and legal developments and do the critical movement building and public education work necessary to win at the ballot should the courts rule negatively.

Why didn’t EQCA and others work to put marriage equality back on the ballot in 2012?

We believe we have a responsibility to the community to make decisions about how to win marriage back very carefully and strategically and did not believe that going to the ballot in 2012 was the most responsible and strategic thing for our movement at the time.