The One-State Solution: What Was Missing From the Supreme Court Oral Argument on Proposition 8

Supporters of same-sex marriage gather in front of the US Supreme Court on March 26, 2013 in Washington, DC. Same-sex marriag
Supporters of same-sex marriage gather in front of the US Supreme Court on March 26, 2013 in Washington, DC. Same-sex marriage takes center stage at the US Supreme Court on Tuesday as the justices begin hearing oral arguments on the emotionally-charged issue that has split the nation. AFP PHOTO/Jewel Samad (Photo credit should read JEWEL SAMAD/AFP/Getty Images)

When the Supreme Court heard arguments on Tuesday, March 26, in the constitutional challenge to California's Proposition 8, a few of the Justices were engaged in some California dreaming. Those Justices were searching for an argument that would enable them to strike down Proposition 8 and allow marriage for same-sex couples to resume in California without deciding broader questions about whether any other states must permit same-sex couples to marry. Justice Sonia Sotomayor asked, "Is there any way to decide this case in a principled manner that is limited to California only?"

The answer to that question is "yes." Unfortunately, what didn't come through clearly in Tuesday's arguments was an explanation of how Proposition 8 is an unprecedented measure that violates the federal Constitution's Equal Protection Clause in the most literal way -- by expressly carving out an exception to California's guarantee of equal protection of the laws for one group of people: gay and lesbian Californians. Several briefs in the case presented the argument to the Court, including a short amicus curiae brief that we at the National Center for Lesbian Rights filed with the Court in February.

Here's the gist of the California-specific argument that Proposition 8 violates the federal Equal Protection Clause in a unique and fundamental way. What unfolded in California in 2008 is unlike anything else that has ever happened in our nation's history. In May of that year, the California Supreme Court ruled that the California's equal protection clause requires the state to provide full equality to LGBT people -- including the freedom to marry for same-sex couples. Just a few months later, Proposition 8 passed. The California Supreme Court upheld the measure as a procedurally valid initiative under state law, but pulled no punches as to Proposition 8's purpose and effect. The court ruled that Proposition 8 amended the California Constitution's equal protection provision to carve out same-sex couples, and only those couples, from the full protection of the state constitution. Indeed, the California Supreme Court described Proposition 8 as literally creating an "exception to the state equal protection clause" for same-sex couples.

Think about that. The state changed its equal protection requirement, so that it now says in effect that California shall provide equal protection of the laws to all its citizens, EXCEPT same-sex couples who want to marry. An equal protection guarantee with an exception for some people is no equal protection guarantee at all at all.

As we wrote in our amicus brief in the U.S. Supreme Court:

[B]y enacting Proposition 8, the State of California has expressly declared that one group of people within its jurisdiction is not entitled to the full protection of the state equal protection requirement. Proposition 8 violates the Fourteenth Amendment's command that "[n]o state shall deny . . . to any person within its jurisdiction the equal protection of the laws" in the most literal sense--by creating an exception to equal protection only for one group, while leaving all other groups in the state fully protected by the state's equal protection guarantee.

No other state has ever done what California did in 2008. The Supreme Court has ruled that state laws that single out a group for unequal treatment in such a pointed way violate the U.S. Constitution "in the most literal sense." As the Court has said, "It is not in our constitutional tradition to enact laws of this sort." To be clear, this California-specific argument does not depend upon a simplistic argument that a state cannot extend a right and then take it back. Instead, the argument is founded on the basic principle that, in our federal system under which a state cannot "deny to any person within its jurisdiction the equal protection of the laws," a state cannot carve one group of people out of the state's guarantee of equal protection of the laws.

This simple, clear path for striking down Proposition 8 avoids some of the problems that Justices appeared to be struggling with during oral argument. During the argument, for example, Justice Anthony Kennedy referred to marriage for same-sex couples as "uncharted waters," suggesting that he is apprehensive about a ruling that would immediately require all 50 states to allow same-sex couples to marry. Justices also appeared skeptical of the argument offered by United States Solicitor General that would require the several states that have offered civil unions or domestic partnerships for same-sex couples to "go all the way," as Justice Ruth Bader Ginsburg put it.

Were the Court to recognize that Proposition 8 uniquely violates the federal Constitution's command of equal protection of the laws by carving out a gay exception to California's equal protection guarantee, the Court would not need to decide right now whether other states must allow same-sex couples to marry.

This argument also resonates in a deep way with those of us in California who experienced the heartbreaking events of 2008, when the state became the first in the nation to say that LGBT people are entitled to full protection against all forms of government discrimination, and then said, "no, you're not." Here's hoping that, in the immense sea of arguments floating before the U.S. Supreme Court in the Proposition 8 case, the California-specific argument will catch the attention of the Justices and lead to a ruling that will recognize the unique way in which Proposition 8 offends the federal Constitution.