U.S. Supreme Court Hears Oral Arguments on Prop 8 and DOMA


Last week, the United States Supreme Court held oral arguments in Hollingsworth v. Perry, a highly controversial case regarding the constitutionality of Proposition 8 (“Prop 8”).  Prop 8 is a 2008 California ballot initiative that amended the constitution to allow only opposite-sex couples to marry, effectively banning same-sex marriage.  The Court also heard oral arguments on Windsor v. United States, which likewise challenges the constitutionality of the Federal Defense of Marriage Act (“DOMA”).

The saga began soon after the initiative’s passage when several lawsuits challenging the constitutionality of Prop 8 were filed both in federal and state court.  In Strauss v. Horton (2009) 46 Cal.4th 364, the California Supreme Court ruled that Prop 8 was a valid enactment under California law.  The following year, Judge Vaughn Walker of the United State District Court for the Northern District of California held Prop 8 was unconstitutional on the grounds that it violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U.S. Constitution.  In 2012, the Ninth Circuit upheld the district court’s decision without deciding whether the Constitution protects the rights of same-sex marriage in all states.  The Ninth Circuit based its decision on the ground that California could not grant the right to same sex marriage as it had done through In re Marriage Cases (2008) and then take it away.

Judge Reinhardt of the Ninth Circuit reasoned that even if accidental procreation was a legitimate reason why California had not originally included same-sex couples in the class of people who can marry, it was not a rational reason for taking away the right to marry from same-sex couples once the right had been extended to them. More pointedly, Judge Reinhardt indicated a concern about accidental procreation could not have been the real reason why California voters passed Prop 8.  The Ninth Circuit combined that inference with evidence of the anti-gay rhetoric that was part of the campaign in favor of Prop 8 to conclude Prop 8 was a product of impermissible discriminatory animus.

On July 3, 2012, the proponents of Prop 8 appealed the case to the U.S. Supreme Court.  Oral arguments were heard on March 26, 2013 before the Justices of the U.S. Supreme Court.  Defenders of Prop 8 argued that California, like other states, permitted only opposite-sex couples to marry because only opposite-sex coupled can accidentally procreate.  Last week during oral arguments, Chief Roberts expressed skepticism about the Ninth Circuit’s rationale as he posited the voters of California had never granted a right to same-sex marriage, and thus it was unfair to characterize Prop 8 as taking away such a right.  Chief Roberts also commented that marriage has been limited to a mean and woman since “time immemorial.”  Chief Roberts, considered a conservative amongst the U.S. Supreme Court, seem to indicate he opposed same-sex marriage.

Several procedural issues were argued, including whether the sponsors of Prop 8 even had standing to defend it in the U.S. Supreme Court.  Justice Ginsberg questioned whether the Supreme Court has even granted standing to the proponents of a ballot initiative, indicating the possibility that the Court could dismiss the case on standing alone without even ruling on the constitutionality of a state’s ban on same-sex marriage.

With regard to DOMA, Justice Kagan questioned its constitutionality by highlighting an excerpt from the 1996 House report on the DOMA, citing: “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.”  Justice Kagan’s point clearly questioned the constitutionality of that law.  Justice Kennedy, usually the swing vote, suggested that he would be willing to throw DOMA based on state’s rights.

The implications of the Court’s ruling on the issue of same-sex marriage could have a profound impact nationwide if the Court actually decides the issue, unless it narrows the application of its ruling to California only on the Prop 8 matter. A decision might not be made until the close of the Court’s current term at the end of June. As it currently stands, 16 states allow same-sex partners to enter into legal relationships that confer most, if not all, the rights and responsibilities of marriage.

The crux of these cases is whether a law may discriminate based on sexual orientation.  In banning same-sex marriage, opponents of Prop 8 argue the initiative intentionally discriminates based on sexual orientation, which is a protected class.  In general, laws cannot discriminate against persons based on their sexual orientation. For instance, California’s Fair Employment and Housing Act (”FEHA”) prohibits discrimination on the basis of sexual orientation in employment and housing.  Not only will the U.S. Supreme Court’s ruling likely shape the legal landscape with respect to same-sex marriage, it may also impact employers and employees with respect to job-related benefits, on-the-job-expectations, etc.

Regardless of how the U.S. Supreme Court rules on this matter, employees should know FEHA will still be in full force and effect in California in protecting employees from discrimination in the workplace on the basis of their sexual orientation or gender identity.  If you feel like you are the victim of unlawful discrimination, it is important to contact an employment attorney well versed in discrimination laws.

Stephen Danz & Associates is California’s statewide employee-only law firm with over 30 years of trial and settlement experience.  Our experienced lawyers have represented thousands of employees throughout the State of California and have won numerous trials and arbitrations on their behalf. If you think you have a possible claim, please contact our office immediately.  We provide free consultations.