Prop 8 struck down: what happens next?

By: Trevor Boeckmann, Holley Law Fellow

In an odd aligning of justices, today the Supreme Court dismissed an appeal to an earlier lower court decision that struck down Proposition 8 as unconstitutional. The decision, written by Chief Justice Roberts and joined by Justices Scalia, Breyer, Ginsburg, and Kagan, did not address the constitutionality of Proposition 8. However, it will mean that same-sex marriages are legal in the state of California.

In order to appeal the decision of a court, a person must have “standing.” Standing requires the person to show that they were harmed by the earlier decision. The harm must be personal and real; it can’t be a general dislike for the decision.

In the Proposition 8 case, couples who sought to marry in California sued the state for enforcing a ban in the state constitution. The couples won in the lower court, and the state decided not to appeal the decision. Instead, a group of Prop 8 proponents decided to appeal the decision. The court ruled that they were not harmed by the decision. Their dislike of marriage equality was not enough of a harm to establish standing.

Moving forward, the case could have a significant impact on the 29 states with bans on marriage equality in their state constitutions. If a same-sex couple takes the ban to court, and the lower court sides with them, the governor and attorney general could decide not the appeal the decision and same-sex marriage would become legal in that state*. In doing so, they would save the state countless dollars of legal fees from defending unconstitutional laws that could instead go to education and job creation.

What this decision does not mean, however, is that another Prop 8 can’t happen in a different state. If a referendum passed in Minnesota, for instance, banning same-sex marriage, and the governor chose to defend it, Minnesota could lose marriage. Luckily times are changing, and with a majority of Americans now in support of marriage equality, it is getting tougher and tougher to pass these sorts of anti-marriage amendments.

There are still some questionsabout what will happen in California now. After marriages start, anti-LGBT advocates will probably return to court to take marriage away again. It is difficult to speculate exactly how this all will unfold, but it is likely an issue that will remain in the courts for a while. Depending on how the cases go, California will likely continue performing same-sex marriages in the meantime.

Still, today’s ruling is monumental. Our nation’s largest state and the home of 1 in every 7 Americans has marriage equality again.

*There’s a possibility the state legislature or a collection of legislators could appeal the decision, but at the very least, unelected anti-LGBT activists will not be allowed to do so.