Same-sex marriage rulings by Supreme Court

Legally, the U.S. Supreme Court's rulings Wednesday on same-sex marriage, the court's first look at the issue, were narrowly crafted. But their consequences are stunning.

Gays and lesbians in California, whose marriages were prohibited by the voters in 2008 after a bitter campaign, are on track to regain the right to wed sometime this summer after the justices ruled 5-4 that the sponsors of the marital ban, Proposition 8, had no right to represent the state in federal court.

UCLA's Williams Institute forecasts that 37,000 same-sex couples California will marry over the next three years, joining 114,000 couples across the United States who have wed in the last decade. Backers of the ballot measure say they'll continue to defend it, but one justice's opinion Wednesday suggests they have little chance of success.

And all legally married same-sex couples will be eligible for more than 1,000 federal benefits that Congress had denied them in 1996 - joint tax filing, insurance coverage, Social Security survivor payments, the right to sponsor a spouse for immigration, even the right to be buried alongside one's partner in a military cemetery. Barriers to those benefits will be lifted in a month because of a 5-4 ruling overturning a section of the Defense of Marriage Act that withheld them from same-sex spouses. Justices in the majority said the federal law had unconstitutionally relegated gays and lesbians to "second-class marriages" despite a history of respecting states' definitions of marriage.

"Today is a great day for American children and families," said Kris Perry, director of a children's advocacy group in Berkeley, who joined longtime partner Sandy Stier in the 2009 right-to-marry suit that the court decided Wednesday.

Karen Golinski, a federal appeals court attorney in San Francisco, challenged DOMA after officials invoked the law to deny family insurance coverage to her wife, Amy Cunninghis, a decision that a federal judge later overturned. Wednesday's ruling, she said, not only keeps Cunninghis on the health plan, but also "moves us one step closer to full equality."

The couple married in 2008, in the months before Prop. 8 thwarted the marriage plans of other gays and lesbians, including Perry, Stier and co-plaintiffs Jeff Zarrillo and Paul Katami of Burbank.

Their lawsuit sought a ruling on the constitutional right to marry, arguing that Prop. 8 discriminated on the basis of sexual orientation. Chief U.S. District Judge Vaughn Walker of San Francisco issued such a ruling in August 2010, but few expected the conservative Supreme Court to follow his lead, and some gay-rights advocates feared a ruling that would uphold such laws in 38 states, including California. Instead, the court issued a narrowly confined decision that crossed ideological lines and never mentioned Prop. 8's constitutionality.

The original plantiffs in the Proposition 8 case John Lewis and Stuart Gaffney await the rulings of the Supreme Court on the steps of City Hall in San Francisco, Calif. on Wednesday June 26, 2013. The court later handing down their decisions dismissing California's Proposition 8 and striking down parts of the Defense of Marriage Act. less The original plantiffs in the Proposition 8 case John Lewis and Stuart Gaffney await the rulings of the Supreme Court on the steps of City Hall in San Francisco, Calif. on Wednesday June 26, 2013. The court ... more Photo: Michael Macor, The Chronicle Photo: Michael Macor, The Chronicle Image 1 of / 68 Caption Close Same-sex marriage rulings by Supreme Court 1 / 68 Back to Gallery

A question of standing

The only subject in dispute was standing - the right of the initiative's sponsors to appeal Walker's ruling after Gov. Arnold Schwarzenegger and Attorney General Jerry Brown, both opponents of Prop. 8, declined to do so.

The California Supreme Court and a federal appeals court had upheld the standing of Prop. 8's proponents, a conservative religious coalition called Protect Marriage, as representatives of the state and its voters. But the Supreme Court, particularly its conservatives, has used the doctrine in recent years to limit access to federal courts, and followed that course Wednesday.

To appeal a federal court ruling, Chief Justice John Roberts observed in the majority opinion, one must have a concrete stake in the outcome, a particular injury to prevent or redress, and not merely support for a cause.

Once Prop. 8 passed, he said, its sponsors had "no personal stake in defending its enforcement that is distinguishable from the general interest of every individual in California." The sponsors were not elected and "answer to no one," he said.

In dissent, Justice Anthony Kennedy protested that the ruling undermines an initiative system that was designed to let the public override elected officials - the same officials who now can pocket-veto initiatives by refusing to defend them.

In California and 26 other states, "the people have exercised their own inherent sovereign right to defend themselves," Kennedy said. "The court today frustrates their choice."

Roberts was joined by fellow conservative Antonin Scalia and liberals Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, while Kennedy's opinion was endorsed by fellow conservatives Clarence Thomas and Samuel Alito and liberal Sonia Sotomayor.

After a 25-day interval in which Prop. 8's sponsors can file for a rehearing, the ruling will require lower courts to lift their injunctions and reinstate Walker's decision declaring Prop. 8 unconstitutional.

The scope of that decision is not entirely clear. On the one hand, the two couples' lawsuit was not a statewide class action, and some legal analysts have questioned whether the judge could grant anyone the right to marry except for those two couples, and perhaps others in their home counties of Alameda and Los Angeles.

On the other hand, the suit was drafted as a "facial challenge" to Prop. 8, in all its applications, and Walker's order prohibited state officials and "all persons under (their) control or supervision" from enforcing the ballot measure.

Shortly after Wednesday's ruling, Brown issued an order through his Department of Public Health requiring all 58 county clerks to issue marriage licenses when the ruling takes effect, which he said might take more than a month. He relied on legal advice from Harris, who said Walker's ruling would apply statewide.

Possible challenges

Prop. 8's sponsors said they are not giving up.

"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," Protect Marriage attorney Andy Pugno said in a statement.

The group could present arguments to the yet-unselected judge who inherits the Prop. 8 case from Walker and his successor, Chief Judge James Ware, both of whom have since retired.

Another option might be to challenge Brown's order in a state court on behalf of a county clerk who claims Walker's ruling doesn't apply to that county - a "murky area" of state law, said Brad Joondeph, a constitutional law professor at Santa Clara University.

But Kennedy's dissenting opinion in the Prop. 8 case suggested that such challenges would be unsuccessful. The majority's dismissal of the Protect Marriage appeal, he said, had made Walker's "statewide injunction effectively immune from appellate review."

The ruling on the Defense of Marriage Act was more straightforward. Kennedy, writing for the majority, observed that the federal government had historically - until the 1996 law - followed each state's definition of marriage when granting benefits.

"DOMA seeks to injure the very class New York seeks to protect," Kennedy said in the case of Edith Windsor, a New York woman who faced $363,000 in inheritance taxes because federal law did not recognize her state-approved marriage to Thea Spyer.

He said the denial of benefits "demeans the couple, whose moral and sexual choices the Constitution protects," and was based, unconstitutionally, on dislike of a politically unpopular minority - as reflected in an official U.S. House report that said supporters of the 1996 law had expressed "moral disapproval of homosexuality."

Kennedy, who was joined by the court's liberal justices, did not define a standard of review for other laws that discriminate based on sexual orientation, leaving that critical issue for future cases.

But Scalia, in one of the dissenting opinions, said Kennedy had provided a road map for suits against same-sex marriage laws by unfairly labeling their supporters as bigots.

"By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition," Scalia said.

The Prop. 8 case is Hollingsworth vs. Perry, 12-144. The Defense of Marriage Act case is U.S. vs. Windsor, 12-307.