Bay Area same-sex marriage advocates react as Supreme Court takes on Proposition 8

The four-year legal clash over California’s Proposition 8 may be coming to an end—the US Supreme Court announced last week that it will hear the case on the state’s same-sex marriage ban, and make its first-ever ruling on the issue. To gay and lesbian rights advocates around the Bay Area, this will be a momentous decision.

“We’re in a pivotal time right now,” said Amber Todd, chair of the annual Pride festival in Oakland and executive assistant to the city administrator. “It is amazing to be heard at this level. I am confident that the defenders of our constitution will uphold equality and rights for all.”

Proposition 8 was passed in 2008 with 52 percent of the vote. The controversial ballot measure amended the California constitution to ban same-sex marriage, adding a section defining marriage as “between a man and a woman.” Its passage set off a lengthy legal battle that made history on December 7, 2012, when the US Supreme Court announced it would hear challenges to Proposition 8 and rule on the constitutionality of the same-sex marriage ban.

“The day is now clearly in sight when the federal government, the state of California, and every state will recognize that same-sex couples and their children are entitled to the same respect and recognition as every other family,” said Kate Kendell, head of the National Center for Lesbian Rights in San Francisco. The NCLR, along with the American Civil Liberties Union and other legal advocates, is supporting the legal team arguing against Proposition 8 in the case.

The case the Supreme Court will hear began in 2009 when two same-sex couples challenged the constitutionality of Proposition 8, arguing that denying same-sex couples the right to marry was discrimination and a violation of the state constitution’s equal protection clause, which guarantees all citizens equal treatment under the law. Hollingsworth v. Perry—formerly Perry v. Schwarzenegger, then Perry v. Brown—was filed with the US District Court for the Northern District of California, which is in San Francisco. It followed several years of legal uncertainty in California about the status of same-sex marriage after San Francisco County briefly allowed about 4,000 couples to marry in early 2004, leading to a long series of political reversals and legal challenges. (See the timeline above for the complete history of Proposition 8 and same-sex marriage in California).

ProtectMarriage.com and other Proposition 8 advocates argue there is no constitutional right to redefine marriage, which they say is traditionally viewed as a union between a man and a woman. The decision to include same-sex couples in that definition should be left up to voters in each state, they argue, and the state of California has voted twice—in 2000 and 2008—to ban same-sex marriage.

But the Proposition 8 same-sex marriage ban was struck down as unconstitutional in 2010 by a district court judge, and the ruling was upheld in the 9th Circuit Court of Appeals. Last July, ProtectMarriage.com filed a petition asking the US Supreme Court to review the decision.

“Marriage between a man and a woman has been the cornerstone of our society for millenniums,” said Andy Pugno, Proposition 8’s general counsel. The petition filed to the US Supreme Court in favor of Proposition 8 states: “Our Constitution does not mandate the traditional definition of marriage, but neither does our Constitution condemn it. Rather, it leaves the definition of marriage in the hands of the People, to be resolved through the democratic process in each State.”

But for four years, the fight over Proposition 8 has been out of the hands of voters as it has worked its way through the state and federal legal system. The case will be heard before the US Supreme Court early next year.

The court will also hear a challenge to the federal Defense of Marriage Act (DOMA), a law passed in 1996 that defines marriage as the union between a man and a woman. Under DOMA, no state can be required to recognize same-sex marriages from another state.

“Both the federal DOMA and California’s Proposition 8 serve only one purpose: to harm and stigmatize same-sex couples and their children,” Kendell said.

Some same-sex marriage advocates are nervous about taking the case all the way to the top—a loss in the Supreme Court would be final. But Todd is optimistic, given recent trends in gay and lesbian rights across the nation. In the last year, President Barack Obama became the first sitting president to support marriage equality, and during the November election four new states legalized same-sex marriage. “We’re living the change,” she said. “We just have to press on and keep going, keep moving rights forward.”

Same-sex marriage is now legal in nine states: Washington, Iowa, New York, Maryland, Connecticut, Maine, Vermont, New Hampshire and Massachusetts. It is also legal in the District of Columbia. But in California and the Bay Area—where Oakland has the highest concentration of lesbian families in the United States, and San Francisco the highest of gay households—the past four years have been a rollercoaster for same-sex couples.

“There have been ups and downs,” Todd said. After the month in early 2004, when under former Mayor Gavin Newsom San Francisco County issued some 4,000 marriage licenses to same-sex couples, the California Supreme Court declared these marriages invalid. In 2008, there was another five-month window when same-sex marriage was legal in California—from June 16 when the California Supreme Court decision overturning a previous ban went into effect, until the November election when Proposition 8 passed.

“I remember everybody was waiting around for us all of a sudden to be able to run to the courthouse and get married,” Todd said. “I don’t want to have to run and go get a marriage license. I want to know that is a right afforded to me.”

Today, she and her partner of three years are planning a wedding: Todd proposed on stage at the Oakland Pride festival in October.

Todd re-launched the annual gay and lesbian festival in Oakland in 2010, as a response to Proposition 8. When the measure passed in 2008, she started planning. “The more we’re out there, the more we show people that we’re no different,” Todd said.

The Supreme Court is expected to rule on Proposition 8 by June, 2013. Todd and her partner had originally planned to go to New York and get a marriage license, but now they are hoping to marry in California if Proposition 8 is overturned.

“Do we really want our marriage license to say New York, or do we want it to be representative of who we are and where we live?” Todd said. “All across the Bay Area, so many people would love that opportunity. It would mean a lot to our families.”