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The U.S. Supreme Court definitively struck down the Defense of Marriage Act on Wednesday, but another key decision — on the constitutionality of California’s Proposition 8 — was not quite so cut-and-dry. Rather than discuss the substance of the same-sex marriage ban, a majority of justices held that supporters of the measure lacked legal standing to overturn a District Court decision from August 2010 that ruled it unconstitutional.
In order to shed some light on the implications of that historic decision, The Hollywood Reporter consulted with legal expert Doug NeJaime, an associate professor at Loyola Law School who teaches courses in law and sexuality, family law and constitutional law.
The Hollywood Reporter: What does today’s Supreme Court ruling on Proposition 8 mean for California?
Doug NeJaime: Given that the court didn’t address the question of the merits or substance of Proposition 8, and they said that the proponents don’t have standing to appeal, it restores the District Court’s decision from August 2010, which said that Proposition 8 is unconstitutional. In practical effects what I think will happen is that the state will start to let [same-sex] couples marry.
THR: What do you mean by “the proponents don’t have standing to appeal”?
NeJaime: The court said if state officials aren’t willing to defend an initiative, those that presented it don’t have standing to defend it.
THR: What, if any, are the hurdles now to same-sex marriage in California?
NeJaime: There’s a question as to how broadly that decision applies. You might see litigation around that and some challenges around that. But I think likely what will happen is that you’ll see state officials like [California Attorney General] Kamala Harris are going to order the county courts to issue licenses to same-sex couples, and so that will all be happening even as there’s some controversy over how broad that decision is.
THR: What questions might challengers raise?
NeJaime: The question would be: Did the one District Court judge in San Francisco have the authority to tell the state that it has to issue marriage licenses to same-sex couples, or does the decision apply only to those couples or the counties that were involved in the case? I think what will happen is that someone like Kamala Harris will say, “We take this to be the law and we are going to order county clerks around the state of California to issue marriage licenses to same-sex couples.”
THR: So bottom line, same-sex couples will marry once again in California.
NeJaime: Effectively, we will have things like same-sex marriage in California. That’s what this means. And combine that with the DOMA decision, it means that couples that get married in California, as well as the 18,000 couples that got married before Prop 8 passed, will have federal recognition.
THR: Could it have been more definitively stated by the Supreme Court?
NeJaime: The court could have addressed the substance and said whether Prop 8 was constitutional or not. That could have been definitive and have had implications for other state laws, but the court didn’t go there.
THR: Why do you think it didn’t?
NeJaime: Well, it didn’t because of the unique situation where the California state officials weren’t defending the law, so we actually did have a situation that you wouldn’t see in other states necessarily. But I think you could sense that the court didn’t want to move too quickly on same-sex marriage, and instead with the DOMA decision they laid the groundwork for a future decision that addresses the merits of the state-law question.
THR: Had they called it unconstitutional, would that have had an effect on states other than California?
NeJaime: It depends on how they’d do it. The 9th Circuit Court had done that but in a way limited to California. But [the Supreme Court justices] could have said something broader that would have implicated other states’ laws, and they clearly didn’t [do that].
THR: So what comes next for same-sex couples who married before Prop 8, and those who want to marry now?
NeJaime: The 18,000 couples married before Prop 8 were legally married after Prop 8 regardless of this case. But they now have federal recognition because of the DOMA case. And now, same-sex couples in California can go get marriage licenses — at some point, we’ll hear from the lower court when that can happen — and they will have both state and federal recognition.
THR: Which court will issue that ruling?
NeJaime: It will be from the federal court. The Supreme Court in the end of their decision said, “Now we send this back to the 9th Circuit Court of Appeals to issue a decision consistent with [our ruling].” So it will restore the District Court opinion. Then we’ll have to look at the District Court order; I don’t remember what it said in terms of days to comply because it was stayed while all this was happening. Then the attorney general will tell us, “OK, starting at X date, same-sex couples can start getting marriage licenses.”
THR: How quickly could that happen?
NeJaime: It could be within 30 days, but I’m not sure.
THR: Is the same judge that ruled in August 2010 going to be the one hearing the case again?
NeJaime: [Judge Vaughn Walker] retired, and then the judge that replaced him has retired, so I don’t know who the District Court judge is that has jurisdiction over this case at this point. They have to assign it to someone.
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