(WASHINGTON) -- When the nine Supreme Court justices retreat behind closed doors on Friday for their regularly scheduled conference, they will consider the issue of gay marriage and decide whether to take up a case that could ultimately determine whether there is a fundamental right to same-sex marriage.
At issue is Proposition 8, the controversial 2008 California ballot initiative that defines marriage as between a man and a woman. It passed with 52 percent of the vote.
A divided three-judge panel of the 9th Circuit Court of Appeals in February struck down "Prop 8," ruling that it "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 relationship and families as inferior to those of opposite-sex couples."
Supporters of Prop 8 are asking the Supreme Court to hear an appeal of that ruling. Gay marriages have been put on hold in California until the Supreme Court decides whether to step in and hear the case.
In court briefs, Charles J. Cooper, a lawyer for ProtectMarriage.com, the original sponsor of Prop 8, writes, "Californians of all races, creeds, and walks of life have opted to preserve the traditional definition of marriage not because they seek to dishonor gays and lesbians as a class, but because they believe that the traditional definition of marriage continues to meaningfully serve society's legitimate interests, and they cannot yet know how those interests will be affected by fundamentally redefining marriage."
Judge Stephen Reinhardt, who authored the Prop 8 decision, made clear that the court was ruling on the "narrowest grounds" specific to circumstances concerning the passage of Prop 8 and was leaving the more general question concerning whether under the Constitution same-sex couples "may ever be denied the right to marry" to be resolved "in other states" and by "other courts."
Opponents of Prop 8 are represented by David Boies, and Theodore Olson, two lawyers who argued on opposite sides in Bush v. Gore.
They contend in court briefs that the question about whether the states might discriminate against gay men and lesbians in the provision of marriage licenses could be the "defining civil rights issue of our time."
They say that the Prop 8 case might be an "attractive vehicle for approaching, if not definitively resolving, that issue."
"By eliminating the right of individuals of the same sex to marry, Proposition 8 relegated same-sex couples seeking government recognition of their relationships to so-called 'domestic partnerships.' Under California law, domestic partners are granted nearly all the substantive rights and obligations of a married couple, but are denied the venerated label of 'marriage' and all of the respect, recognition and public acceptance that goes with that institution," Boies and Olson say.
But because they won at the lower court, even though it was a narrow ruling, they have urged the Supreme Court not to take up the case. In part, they argue, the court should decline the case because more review would delay the ability of their clients to marry in California.
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