Same-Sex Marriage – What is Our Constitutional Right?

March 26, 2013

Today the Supreme Court hears arguments on California’s Ban on Same-Sex Marriage and whether it violates the Constitution. Proposition 8 which states that “only marriage between a man and a woman is valid or recognized in California” was passed in November 2008.

Prior to that passing, same-sex couples had the Constitutional right to marry in California per In re Marriage Cases stating “California legislative and initiative measures limiting marriage to opposite-sex couples violate the state Constitutional rights of same-sex couples and may not be used to preclude same-sex couples from marrying.”

A ruling, which likely will not come until June, can go in one of three ways:

  1. The court could uphold Proposition 8. This would allow states to either allow or ban same-sex marriage as they choose.
  2. The court could strike down Proposition 8 on several grounds (see below).
  3. The court could decide supporters of Proposition 8 lack standing to appeal.

Grounds to Strike Proposition 8 Down?

  • Banning same-sex marriage is a violation of the Constitution.
  • California could not withhold the designation of “marriage” from same-sex couples while providing all of the benefits and burdens of marriage through a civil union.
  • After the California Supreme Court established the right to same-sex marriage, California was not entitled to withdraw the right.

There are currently 38 states banning same-sex marriage and 8 states allowing “everything-but-marriage” civil unions. (5 of those 8 states fall into both categories.)

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