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History and Politics Department Head Discusses Supreme Court Ruling on DOMA and Prop 8

June 26, 2013


Scott Barclay

Dr. Scott Barclay

Dr. Scott Barclay discusses the impact of today's long-anticipated Supreme Court rulings on DOMA and Prop 8 and how the decisions will affect same-sex couples in California and across the country.

As of today’s decision from the United States Supreme Court, California has been added once again to the states that recognize marriage equality. The US Supreme Court upheld a lower federal court ruling, which had negated the effect of the 2008 popular initiative in California that restricted state recognition of same-sex marriages. Only California is impacted by this decision.

As of this decision, there are 13 states (CA, CT, DE, IA, MA, ME, MD, MN, NH, NY, RI, VT, and WA) that have marriage equality laws and six states (CA, CO, HI, IL, NV, NJ, and OR) that allow civil unions. Based on 2010 Census figures, over 127 million residents – 41% of the U.S. population – currently live in one of these 19 states. Pennsylvania is not one of these 19 states. It does not have a state constitutional amendment, but it does have a law restricting marriage to opposite sex couples.

The introduction of same-sex marriage has been achieved in one of three ways:

  1. a state’s legislature successfully passed a bill though both legislatives houses in support of same-sex marriage or civil unions and the state’s governor signed it into law;
  2. a state’s highest court judicially ordered the establishment of same-sex marriage and/or civil unions; or
  3. a statewide popular initiative introduced same-sex marriage or civil unions. In California, it has been achieved by a combination of all three methods, plus the involvement of the federal courts.

The history of same-sex marriage recognition in California is a complex story that involves a variety of the state’s political and legal institutions in an ongoing dynamic exchange on this issue. The California legislature first introduced a law restricting same-sex marriage in 1977 and in 2000 a statewide popular initiative (Proposition 22) reinforced this existing prohibition. In 2003, the California legislature passed a Domestic Partnership law (to mostly take effect as of 2005) that created the equivalent of civil unions for romantically committed same-sex couples. In February 2004, the Mayor of San Francisco began issuing marriage licenses to same-sex couples. In 2005 and again in 2007, the legislature attempted to pass a law recognizing same-sex marriage, but the Governor vetoed each successfully passed bill. The State’s highest court, the California Supreme Court, endorsed same-sex marriage in 2008. Later in 2008, a statewide popular initiative / state constitutional amendment (Proposition 8) restricted state recognition of same-sex marriage. In 2009, the California Supreme Court recognized the legal validity of marriages celebrated prior to passage of Proposition 8, but restricted the state in celebrating marriages occurring after the certification of Proposition 8 in November 2008.

Federal courts subsequently took up the issue based on arguments related to the U.S. Constitution, rather than California’s own constitution (which had been the primary basis in the California Supreme Court cases). The decision of the federal courts to limit the effect of Proposition 8 was the last legal position of a court on this issue. The current decision of the United States Supreme Court to return the case to California acts to, in effect, return the state of California to the legal position as it stood after the earlier lower federal court decision on Proposition 8; therefore, it reinstates marriage equality in California as that court had earlier ruled.

The United States Supreme Court also decided that Section 3 of the 1996 Federal Defense of Marriage Act was invalid. Section 3 prohibited the U.S. Government and its agencies from recognizing federal benefits (such as Social Security or Federal Taxation) for any same-sex marriages, even if such marriages were legally recognized by the state in which a couple resided.

This decision only effects federal law. It does not extend same-sex marriage recognition to any new locations. Accordingly, it does not change the legal position of the 29 states (AL, AK, AZ, AR, CO, FL, GA, KS, ID, KY, LA, MI, MS, MO, NE, NV, NC, ND, OH, OK, OR, SC, SD, TN, TX, UT, VA, WI) that still have state constitutional amendments prohibiting legal recognition of same-sex marriage in the requisite state. These existing constitutional amendments can only be removed by either the passage of a new state constitutional amendment directly on the issue or a future decision of a federal or state court that the original state prohibition is unconstitutional.

Dr. Scott Barclay joined Drexel University’s College of Arts and Sciences in the fall of 2011 as the head of the Department of History and Politics. He comes to the College after a two-year rotation at the National Science Foundation as a program director for the Law and Social Science Program. Barclay completed his undergraduate degree in Australia and received his Ph.D. from Northwestern University. He has previously held faculty positions at SUNY Albany, UC Santa Cruz, and the University of Washington. His current research project highlights the many ways that law is invoked, utilized, and reconstituted in the dynamic interaction of courts with social movements and state institutions. His primary example of late is the battle over same-sex marriage in the 50 states. In his research, Barclay considers the complex interplay of political, demographic, cultural, and social movement factors that generate and influence legislative and judicial action around this issue since it first appeared on the national scene in 1971.