Same-Sex Marriage Proponents Vow Legal, Legislative Action Depending on SCOTUS Ruling

Marriage equality became a constitutional right under the California constitution, but Proposition 8 changed that via a referendum to amend the state’s constitution. The result, according to Boies, was that “a right that had been granted was then taken away.” If the court decided in this way, same-sex marriages would be held constitutional only in the state of California.

Boies said the high court could also hold that the people who brought the case to the court do not have standing, which would make same-sex marriage legal in California, but the issue of its constitutionality would be left unaddressed.

“The question is, do those people have a standing to come before the court and defend it? Under Supreme Court precedent, they probably do not have standing," Boies said. "The court is very restrictive in terms of to whom they grant standing, and they never granted standing to private citizens who do not have a fiduciary relationship to the state.”

Finally, the court could hold that discrimination based on sexual orientation is unconstitutional based on the equal protection or the due process clauses of the U.S. Constitution in a way that legalizes same-sex marriages nationwide.

Gillibrand spoke about the recent wave of state legislatures and members of Congress coming out in support of same-sex marriage and attributed the change in public opinion to a generational shift in which the younger generations have played an important role in changing the view of the older generations on the issue.

The public debate on the issue has reversed course since ballot initiatives on gay-rights issues helped drive conservatives to the polls in 2004, she said. Since then, many states have expanded marriage rights to same-sex couples.

“The American people have already decided, they want full equality in this country. If Congress continues to lead from the past…it will be just another level of discouragement for the American people about the lack of reform happening in [Washington],” Gillibrand said.

Gillibrand, an outspoken advocate for gay rights, played a prominent role in getting “Don’t Ask, Don’t Tell” repealed. She has also pledged her support to Sen. Patrick Leahy’s (D-Vt.) amendment to the Senate’s comprehensive immigration reform bill that would recognize same-sex spouses under immigration laws. Republicans have opposed the provision, in addition to some Democrats who worry that it would sink the overall bill.

Boies, who represented the vice president in Bush v. Gore, said if the ruling fell short of making same-sex marriage a constitutional right, legal action would continue.

"If we don't win it nationally, there will be additional litigation," Boies said.