The Supreme Court's Rulings on Proposition 8 and DOMA
California Lawyer

The Supreme Court's Rulings on Proposition 8 and DOMA

by Erwin Chemerinsky

June 2013

June 26, 2013 -- The Court's dismissing the challenge to Proposition 8 on standing grounds will have the practical effect that same sex couples in California can marry (Hollingsworth v. Perry).

In 2010 the federal district court in San Francisco declared Proposition 8 unconstitutional and issued an injunction against the Governor, the Attorney General, and other state officials from enforcing California's ban against same-sex marriage. There was standing in the district court because it was a suit brought by two same-sex couples that wished to marry. But the Supreme Court said that there was not standing to appeal. This means that the district court ruling stands and Proposition 8 is enjoined. Same-sex couples can marry in California.

The Court's decision striking down Section 3 of DOMA was narrow in the sense that it was focused on why a federal law denying recognition of same-sex marriage is unconstitutional (United States v. Windsor ). However, the Court declared only Section 3 of DOMA unconstitutional. (Section 2 of DOMA, which says that no state has to recognize a same-sex marriage from other states, was not at issue before the Court.)

There still will need to be litigation as to state laws that prohibit same-sex marriage. But the reasoning in Justice Kennedy's opinion - that the denial of recognition of same sex marriage reflects animus and serves no legitimate purpose - provides a basis for challenging state laws denying marriage equality.

Thus the case will lead to much more litigation as to state laws, but I think it is clear where the Court ultimately will go in holding that laws denying marriage equality deny equal protection. But it didn't happen today.

Erwin Chemerinsky is the dean of UC Irvine Law School.

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