Editorial: It's way too early to start celebrating
ONE OF the ironies of this
week’s debate about same-sex marriage at the U.S. Supreme
Court was that, on Monday, gay marriage proponents were asking
the court to require states to adhere to a uniform national
standard about who can be married, while on Tuesday, they were
urging the court to require the federal government to defer to
state laws about which couples are eligible for marriage
licenses and the benefits that come with them.
The irony was overlooked by most national media reporters and commentators, who fell all over themselves covering the court’s deliberations from a pro-gay-marriage point of view, and who struggled mightily to foresee a favorable outcome in whatever the justices of the court had to say.
After Monday’s hearing, for example, the New York Times gave
big, front-page play to comments from several justices to the
effect that the lawsuit over Prop. 8 might have to be thrown
out of court on a technicality — an outcome which (the New
York Times hopes) would overturn Prop. 8 and make gay marriage
legal once again in California.
And then on Wednesday, the “CBS Evening News” gave extensive
coverage to quotes from various justices during a second day
of debate over gay marriage to the effect that a federal law
recognizing only traditional marriages was probably an
unconstitutional intrusion on states’ rights.
Here at The Pine Cone, we certainly agree that gay marriage
should be legal, and that federal benefits should be available
to same-sex couples. But we also believe that undue optimism
isn’t helpful, and that it’s important to take a realistic
view of what happened at the Supreme Court this week. In fact,
a very likely outcome is that the court will decide marriage
laws are the sole province of the states, and that the federal
government will have to defer to them, not only by recognizing
the validity of gay marriages in states that allow them, but
by letting some states decide not to permit them, if that’s
what a majority of the residents or legislators of those
In other words, the Supreme Court is likely to say California
can institute gay marriage or not, and the federal government
should stay out of it.
To understand why the issue may be put right back in the
hands of the people of California, a little background is in
Before 2008, gay marriage was illegal in California, as it
was almost everywhere, and there had not even been a serious
attempt in the Legislature to institute it. But in June 2008,
the California Supreme Court unexpectedly ruled that
homosexuals had a fundamental right to marry, and that gay
marriages must be allowed in the state, regardless of the
wishes of the majority of the people and the members of the
Just a few months after that ruling, the people passed Prop.
8, overturning the California Supreme Court’s decision and
making a ban on gay marriage part of the state’s constitution.
The California Supreme Court then upheld the validity of Prop.
8 and abandoned its earlier ruling that gay marriage was a
A lawsuit in federal court followed, leading to a ruling in February 2012 by the Ninth Circuit Court of Appeal that, despite the state Supreme Court’s upholding of Prop. 8, the voters of California were not allowed to ban gay marriage because the U.S. Constitution prohibited a state from taking away a minority right once it had been granted.
In other words, the people of California could have banned
gay marriage before the state Supreme Court instituted it, the
appeals court ruled, but were prohibited by the federal
Constitution from banning it afterward, even though the
California Supreme Court said they could.
At this week’s U.S. Supreme Court hearing, it was certainly
true that quite a few justices expressed skepticism whether
they should even be considering the matter. But if they decide
that ruling on Prop. 8 is out of their jurisdiction, it would
be very strange for them to let a lower federal court ruling
be the final say on it. A more likely outcome, it seemed after
Monday’s oral argument, would be for them to refuse to rule on
Prop. 8 themselves, but for them to also vacate the lower
federal court rulings, which would leave Prop. 8 in effect.
If they do, there will be an immediate effort to take the
issue back to the ballot box in California. So, while it may
be too early to start celebrating a U.S. Supreme Court ruling
upholding gay marriage, it isn’t too early to start getting
your petitions ready. Sooner or later, gay marriage will be
legal in California, and the sooner the better, as far as
we’re concerned. Being complacent now because of a hoped-for
outcome at the U.S. Supreme Court will just make that day