Lyle Denniston writes at SCOTUSblog:
Supporters of California’s “Proposition 8,” a ballot measure adopted by voters four years ago to ban same-sex marriage in the state, urged the Supreme Court on Tuesday to uphold the ban and thus put it back into full effect. The petition and appendix (a file of nearly 500 pages) are here. The case is Hollingsworth v. Perry.
The document raised a single question: whether the Constitution’s guarantee in the Fourteenth Amendment of legal equality prohibited California from “defining marriage as the union of a man and a woman.” A three-judge panel of the Ninth Circuit Court split 2-1 in early February in striking down the proposition, finding that it was motivated by hostility to gays and lesbians. The filing of the petition by “Proposition 8″ backers was the latest in a round of new appeals to the Justices on same-sex marriage issues. The other new cases involve the constitutionality of the 1996 federal law, the Defense of Marriage Act, that permits federal benefits only for marriages of a man and a woman. Those cases, though, do not raise the issue of whether there is a constitutional right for homosexuals to marry, as does the California case.
Presumably, the cases will be ready for the Court to consider later this summer or early in the new Term that starts October 1. While there is no guarantee that any of the cases will be granted, it seems highly likely that at least some of them will be. The Court has never decided, after full review, a case on gay marriage. It also has never specified the constitutional test to be applied to laws that are claimed to discriminate on the basis of sexual identity.
California so far is the only state that, after having once accepted same-sex marriage as a legal right (that was done in California by the state Supreme Court), then voted to take away that right. That withdrawal is the main reason that the Ninth Circuit majority found the ballot measure to be unconstitutional. The majority relied heavily upon a 1996 Supreme Court decision, Romer v. Evans, nullifying a Colorado constitutional amendment that took away the rights of homosexuals to seek laws in their favor. That withdrawal, the Supreme Court said then, was invalid because it was based upon “animus” toward homosexuals as a group.
Six states and Washington, D.C., now recognize same-sex marriage, and two other states have adopted measures to do so, but those are subject to veto by voters at the November elections. In the new petition, “Proposition 8″ supporters argued: “The profoundly important question whether the ancient and vital institution of marriage should be fundamentally redefined to include same-sex couples ‘is currently a matter of great debate in our nation,’ as the court below acknowledged, ‘and is an issue over which people of good will may disagree.’”
Arguing that the issue should be left with the states to decide individually, the petition said that, until the Ninth Circuit had struck down the California measure, every court — state and federal — has upheld the traditional definition of marriage. The petition also asserted that the Supreme Court has done so, too, in the 1972 decision in Baker v. Nelson. The Baker decision was a summary ruling, without briefing and oral argument. Whether that is a binding precedent controlling the same-sex marriage issue now is a subject of ongoing debate in the lower courts, and will be a central issue for the Supreme Court if it grants review of the California case.