Gay rights supporter Vin Testa waves a rainbow flag outside the U.S. Supreme Court building June 26, 2013 in Washington, DC.(Photo: Win McNamee, Getty Images)
Richard Wolf, USA TODAY
WASHINGTON -- A fractured Supreme Court declined on Wednesday to decide whether the Constitution permits states to ban same-sex marriage, saying instead that it did not have authority to hear a case challenging California's law.
The court's 5-4 decision, written by Chief Justice John Roberts, overturned a lower-court decision invalidating that state's voter-approved law barring gay and lesbian marriages. The decision could set the state for gays and lesbians to marry throughout the nation's largest state, though its immediate effects were unclear.
Roberts was joined by conservative Justice Antonin Scalia, as well as three of the court's more liberal justices. They said the court did not have the authority to consider an appeal filed by backers of Proposition 8.
"Because we find that petitioners do not have standing, we have no authority to decide this case on the merits, and neither did the Ninth Circuit," Roberts wrote.
The California Supreme Court cleared the way for gay marriages four years ago, and quickly about 18,000 couples tied the knot. That led opponents of same-sex marriage to demand a voter referendum outlawing gay marriage, which passed narrowly in November 2008.
The original lawsuit against Proposition 8, filed by a gay couple and a lesbian couple, had prevailed at both lower federal courts. The district court said the law violated the Constitution's equal protection clause because it was "premised on the belief that same-sex couples simply are not as good as opposite-sex couples." The appeals court ruled more narrowly that voters could not take away a right previously granted to the state's gays and lesbians.
Since then, after a string of successful state bans on gay marriage, a half dozen more states have legalized the practice: Maine, Maryland, Washington, Delaware, Rhode Island and Minnesota. Waiting in the wings are several others, from New Jersey to Hawaii.
Rather than remaining on the sidelines in the California debate, the Obama administration came out forcefully this year against the ban and helped to argue the case in court. It singled out California and several other states that allow civil unions or domestic partnerships, arguing they cannot deny the title of marriage.
Making the case for California's gay marriage proponents was Theodore Olson, the conservative former U.S. solicitor general who teamed up with liberal David Boies on the case. They were representing two couples: Kris Perry and Sandy Stier, lesbian parents of four sons, and Jeff Zarrillo and Paul Katami, a gay couple who want to marry and raise a family. Nearly all of them have been in court in recent weeks, anticipating a favorable decision.
Arguing in support of Proposition 8 was Charles Cooper, representing the original proponents of the referendum, who contend that marriage is based upon producing and raising children by a mother and father. They say forcing opponents to recognize same-sex marriages would infringe on their religious beliefs. And they say states and voters should be left alone to make their own decisions.