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US Supreme Court expected to decide action on Calif. gay-marriage case

Published: Friday, Nov. 30, 2012 9:32 a.m. CDT

(MCT) — SACRAMENTO, Calif. — More than two years after a federal judge in San Francisco ruled California’s Proposition 8 unconstitutional, the U.S. Supreme Court is expected to decide Friday if it will take up the landmark gay-marriage case.

If it elects not to grant review, gay and lesbian Californians who have waited for years to wed are preparing to do so as early as next week.

The court is expected to announce its decision Monday, though it could come as early as Friday.

“We have our rings and clothing and all of that,” said Diana Luiz of Sacramento. “We just want them to say it’s legal.”

Luiz, 52, and her partner, Nicola Simmersbach, 50, hoped to wed two years ago, after U.S. District Judge Vaughn R. Walker’s historic ruling overturning Proposition 8.

But gay marriages were put on hold while the 9th U.S. Circuit Court of Appeals considered the case, and then as proponents of Proposition 8 appealed to the Supreme Court.

For years the case was expected to be decided there — and it still may be.

The prospect of a Supreme Court review was dimmed, however, by the narrow legal ground on which the appeals court upheld Walker’s ruling.

In its February decision, the appeals court ruled that California wrongly stripped gays and lesbians of a right they previously enjoyed, as gay marriages were allowed for several months after the California Supreme Court issued a ruling legalizing gay marriage before the passage of Proposition 8 in 2008.

The appeals court did not consider the broader question of whether gays and lesbians may ever be denied such a right, likely lessening the interest of the nation’s highest court, said Courtney Joslin, a law professor at the University of California, Davis.

The Supreme Court is far more likely, Joslin and other scholars said, to consider one of several other gay-marriage cases. Those cases involve the federal Defense of Marriage Act.

In the Proposition 8 case, California’s stay on gay marriages could be lifted within hours — but more likely within days — if the high court declines to hear the matter.

Plenty of preparations are under way for that option.

In Sacramento, gay-rights activists are recruiting volunteers to officiate weddings at the state Capitol on Tuesday, while Los Angeles and San Francisco officials asked the 9th Circuit this week to provide 24 hours’ notice before allowing gay marriages to proceed.

“In prior instances when decisions were issued in this and other cases relating to marriage for same-sex couples, there have been large gatherings, including protesters, in the Civic Center area of San Francisco,” wrote Therese Stewart, San Francisco’s chief deputy city attorney. “Those gatherings have included both people who favor and people who oppose marriage for same-sex couples. While, thus far, these gatherings have not involved significant violence, they have involved heated rhetoric, expressions of intense emotion and confrontations between people who strongly disagree.”

Gay-rights activists are divided about their hopes for Supreme Court action, knowing that if the court declines to hear the case it will not set a precedent nationwide.

“I’m torn,” said Shara Murphy, executive director of the Sacramento Gay & Lesbian Center. “It’s tough to see couples here in Sacramento who are friends, who if they just deny (a) hearing would be able to marry this year. ... But as far as a civil rights struggle, of course, it would be great to have it heard.”

If the Supreme Court does take the case, its decision is expected to be divided, and it is possible Proposition 8 will prevail.

For advocates of same-sex marriage, said Scott Cummings, a Univeristy of California, Los Angeles law professor, “this all comes down to a set of unknowns ... and given that, it seems probably not the worst outcome for the court to say ‘Look, the time’s not right yet.’ ”

Cummings said the court will “probably defer on the Prop. 8 case.”

For proponents of Proposition 8, allowing the lower court’s ruling to stand would be disastrous.

“It would essentially create a constitutional right in the biggest state in the country,” said Folsom lawyer Andy Pugno, the proposition’s author. “It has such an enormous impact that it’s not something the court can look the other way on.”

If the Supreme Court declines to hear the case, Pugno predicted it would take only “a matter of weeks” before judges in other jurisdictions followed the lead of Walker and the appeals court.

“Allowing the 9th Circuit’s decision to stand would probably be fatal to the ultimate goal of allowing states to decide for themselves,” he said, “because the decision creates a precedent that essentially says there’s no rational reason for limiting marriage to a traditional definition.”

If the Supreme Court does take the Proposition 8 case, it is expected to decide the matter by June.

Randy Thomasson, president of the conservative SaveCalifornia.com, said he would be “surprised and shocked if you couldn’t find four votes on the high court to take this case.”

For the court to deny review, he said, “is basically unleashing the wolves against marriage and the vote of the people.”

Craig Kramer, Sacramento County’s clerk-recorder, said this week his office is prepared, depending on the court’s action, to start issuing marriage licenses to gay and lesbian couples immediately.

“We’re totally set up,” he said. “It would take us about two seconds to start issuing them.”

At Headhunters bar and restaurant in midtown Sacramento, owner Terry Sidie, 67, said “it’s been a long time” since opponents of Proposition 8 gathered there to watch election returns for Proposition 8 four years ago.

Sidie, who is gay, said he sympathizes with those who consider marriage as exclusively between a woman and a man. But he added: “As the times change, things change. Everybody should have the same rights.”

Behind the bar, Billy Ray Parrish, 50, said he has been with his partner for 23 years and wants benefits equal to those of heterosexual couples.

The bartender is only “50-50” on Proposition 8, however. Parrish, a Republican and Southern Baptist, said he is a traditionalist who believes the term “marriage” should be left to women and men.

He had ideas of his own should the court decide differently. In that event, Parrish said, “I want to be a gay divorce attorney.”

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