Same-sex couples in California might get an early Christmas present next week — and retailers an unexpected boost in sales — if the U.S. Supreme Court refuses to review the case of Hollingsworth v. Perry.
Back in February of this year, a panel of three justices on the 9th U.S. Circuit Court of Appeals issued a decision stating that Proposition 8, the state’s ban on gay marriage passed by voters in 2008, was unconstitutional because it revoked a previously recognized right for same-sex couples to wed.
The decision from the 9th Circuit was written to avoid the larger issue of whether same-sex couples could ever be denied the right to marry, and instead it focused on the fact that Prop. 8 simply eliminated the title of “marriage” while leaving all other incidents of marriage (adoption, property, etc.) intact. According to the decision, “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”
The Supreme Court will meet Friday in closed session to decide whether it will review 10 cases involving same-sex marriage. The Perry case is just one of them. Eight of the other cases center on the constitutionality of the Defense of Marriage Act, the federal law that only recognizes marriage as between a man and a woman. The final case is a challenge to an Arizona law that only recognizes heterosexual marriage for state employees.
Because the Perry case is different from the others, there is reason to hope that the court will decline to review it.
Andrew Koppelman, law professor at Northwestern University, has argued on scotusblog.org that the justices could easily (and probably will) strike down DOMA on the grounds that states should be allowed to make their own decisions about marriage.
But reviewing Perry means examining the deeper constitutional issues of the rights of gay people, something with nationwide implications that the justices probably don’t want to dig into.
The Supreme Court could agree to review the case, put it on hold (which could hold up everything for months) or decline to review it. If the justices decline, the 9th Circuit ruling stands, and after a quick procedural move at the circuit court, marriages among same-sex couples can resume, perhaps even as early as Tuesday or Wednesday, making for a very happy holiday.
Vive la différence!