The U.S. Supreme Court on Friday decided to tackle the same-sex marriage issue head on, agreeing to review the legal challenge to California's Proposition 8 and another case involving the federal government's ban on benefits for same-sex couples.
In brief orders released after their closed-door conference, the Supreme Court justices decided to review a federal appeals court's ruling earlier this year striking down Proposition 8, California's voter-approved ban on same-sex marriage.
As a result, the court would rule on the case by the end of its term in June. In the meantime, same-sex marriage remains on hold in California. The court is expected to hear arguments in the case in mid to late March.
The Obama administration has told the Supreme Court it considers the federal law unconstitutional, but House Republicans have jumped in to urge the high court to uphold the anti-gay marriage provisions.
Proposition 8 supporters were pleased the Supreme Court agreed to hear their arguments.
"Every one of the numerous legal steps we have taken for the past four years has been in anticipation of this moment," said Andrew Pugno, general
San Francisco City Attorney Dennis Herrera, who has helped challenge the law, said it was an important step in the civil rights battle. And lawyers for two couples challenging Proposition 8, who have always envisioned taking the case to the Supreme Court, are ready to settle the gay marriage question once and for all.
"It's a moment of mixed feelings," said David Boies, who pressed the case with Theodore Olson, former U.S. Solicitor General during the Bush administration. "On the one hand, we wanted our clients to have marriage equality immediately. On the other hand, it's an ideal case for the Supreme Court to decide this crucial civil rights issue."
Kristin Perry and Sandy Stier, a Berkeley couple challenging the law, expressed hope the Supreme Court would give them the right to marry, insisting they were not disappointed the justices didn't hand them an immediate victory. Had the Supreme Court declined the case, same-sex couples would have gained the right to marry in California.
"What we've always wanted was the very biggest, broadest outcome possible," Perry said. "That can only happen if the Supreme Court listens to the case."
In the Proposition 8 case, the Supreme Court agreed to review the full scope of the challenge to the law, which gay and lesbian couples argue denies them equal rights to marry. The 9th U.S. Circuit Court of Appeals found the law unconstitutional because it stripped away same-sex couples' previous right to marry in California.
But the justices also indicated they will review a second issue in the Proposition 8 case: whether backers of the marriage ban have a legal right to defend the law on appeal when California's governor and attorney general have refused to do so.
If the Supreme Court finds Proposition 8 backers do not have so-called "standing" to press the appeal, the justices would not have to address the central legal issues. That would enable same-sex couples to legally marry in California, basically upholding the original ruling striking down Proposition 8.
Chief U.S. District Judge Vaughn Walker first struck down Proposition 8 in August 2010. Since that time, both Gov. Jerry Brown and Attorney General Kamala Harris have refused to defend the law because they consider it unconstitutional.
Both the California Supreme Court and 9th Circuit found that Proposition 8 backers should be allowed to appeal the case. But the Supreme Court is now revisiting that question.
Proposition 8 lawyers say the governor and attorney general should not be able to trump the voters by refusing to defend a law in court. But Olson and Boies argue that gay marriage foes do not have the right to defend the law.
Howard Mintz covers legal affairs. Contact him at 408-286-0236 or follow him at Twitter.com/hmintz