Prop. 8 supporters, opponents await Supreme Court decision

November 29, 2012

At San Francisco City Hall, officials are awaiting their moment in history, but they just don't know when it will come.

In the complex calculus of gay marriage in California, weddings could become legal within days. So City Hall is preparing for a possible crush of same-sex couples seeking marriage licenses and making contingency plans for demonstrations.

But it is also possible that this preparation is for naught and the future of same-sex unions will remain up in the air for months or longer.

The U.S. Supreme Court is poised to take up the issue of gay marriage in California as soon as Friday morning. The moment has prompted nervous debate within the gay-rights movement about the best path to achieve gay marriage.

If the justices opt not to hear the Proposition 8 case, then a federal appeals court ruling that found the 2008 state ballot measure banning same-sex marriage unconstitutional would stand, clearing the way for marriages to begin. If the justices take up the case, a ruling would not come until next year and gay marriage would remain on hold until then, or longer depending on how the court rules.

Were the high court to decide to rule on Hollingsworth vs. Perry, it could lead to a historic victory legalizing same-sex marriage nationwide. But gay activists are well aware that the court could rule against them and throw the movement back at a time when same-sex marriage has seen a series of election victories at the state level.

Opponents of gay marriage, by contrast, are eager for the Supreme Court to weigh in and are hoping it will block the growing legalization of same-sex unions.

"This claim that somehow hidden within the U.S. Constitution is this right to redefine marriage is just false," said Brian Brown, the president of the National Organization for Marriage.

Jim Campbell, legal counsel for Alliance Defending Freedom, which represents the official proponents of Proposition 8, agreed, and said he hoped the high court would conclude "that defining marriage as the union of a man and a woman is constitutional."

It's been four years since California voters approved a ban on gay marriage. During that time, several more states have legalized gay marriage; it is now legal in nine states and the District of Columbia. Many gay-rights activists in California feel left behind and eager for the state to resume marriages. The question is: How best to make it happen?

Jeffrey J. Zarrillo, who with his partner is a plaintiff in the federal suit now before the court, wants the high court to hear the case, which he is confident of winning. "This case is important in all 50 states, not just California," said Zarrillo, 39, a Burbank resident.

But Kate Kendell, executive director of the National Center for Lesbian Rights, is one of the voices of caution. "Anything is possible with any court," she warned, and legal scholars don't give a win in the case "the best odds."

For that reason, Kendell said she hopes the court doesn't take the case. That would still "put a grave marker on top of Proposition 8 once and for all and allow California couples to marry." Recent studies from the Williams Institute at UCLA law school, a think tank on sexual orientation policy, found that there are nearly 100,000 same-sex couples living in California, and that 24,000 would marry in the next three years if they had the opportunity to do so.

The long years of litigation also have left some gays and lesbians impatient and frustrated and questioning whether the courts remain their best forum for achieving marriage equality. Given the victories on election night, some believe that the ballot box, not the legal system, may now be the answer.

"There are definitely divisions in terms of people's views," said Gary Gates, a researcher at the Williams Institute. Some "say if this case hadn't come up, and we had put it on the ballot … we might have had marriage back."

The divergence of opinion echoes back to the days when the historic federal lawsuit was first filed in 2009. At the time, many gay-rights groups opposed going into federal court, fearing a setback at the U.S. Supreme Court. They preferred to tackle marriage rights state by state.

But with voters passing marriage bans across the country, a political strategist in Los Angeles, Chad Griffin, hired a top-notch legal team to sue to overturn Proposition 8 in federal district court in San Francisco. Both the trial court and the U.S. 9th Circuit Court of Appeals ruled against California's marriage ban.

"The vast majority of us want to go before the U.S. Supreme Court and win," said Evan Wolfson, founder of Freedom to Marry, an advocacy group based in New York and Washington, D.C. But because no one can confidently predict what the high court will do, a decision not to intervene in the case would be "an immense victory," he said.

Instead of accepting or rejecting the Proposition 8 case, the high court could also put the issue on hold for weeks or many months and first decide challenges to the federal Defense of Marriage Act, which barred federal recognition of same-sex marriage. Many gays and lesbians said they dreaded more delays.

"The problem with the court process … is it's extremely slow," said Thomas Watson, board chair of Love Honor Cherish, a group pressing for marriage rights. "The promises that were made when the [federal lawsuit] was filed was that it was going to bring marriage nationwide and do so quickly."

That hasn't happened, and the focus on the lawsuit diverted attention from the ballot box, he said. In the meantime, many elderly gays and lesbians have died without being able to marry.

Despite all the uncertainty, San Francisco officials are preparing for a fast resumption of gay marriage.

To give the city time to prepare, the city attorney's office this week asked the appeals court for at least 24 hours notice before issuing the go-ahead for marriages, "to ensure the health and safety of San Francisco's residents and visitors."

"We will have people coming to celebrate, and people coming to get married, and it wouldn't be unusual that we would have protesters," San Francisco City Atty. spokesman Matt Dorsey said.

Los Angeles County officials, meanwhile, said they are waiting to see what the court does before taking any action.

But many couples said that if the high court's actions lead to legalization of same-sex marriage in California, they won't need to rush to the altar because this time there will be nothing hanging over their heads that could take away the right to marriage.

During the long wait for a decision, Zarrillo and his partner of nearly 12 years, Paul T. Katami, have changed their wedding plans. Instead of a small ceremony in Maui, the couple now plan a large celebration.

"We have to keep our eyes on the prize," said Katami, 40. "And for us, that means getting married."