WASHINGTON — Gay and lesbian couples who are challenging California’s ban on same-sex marriage said Thursday that the Constitution prohibits discrimination against them in the nation’s largest state or anywhere else in America.
Prohibitions on gay marriage are enshrined in 30 state constitutions and in statutes in roughly 10 other states. “This badge of inferiority, separateness, and inequality must be extinguished,” the two couples said in their legal brief filed with the Supreme Court.
But they also laid out several options in the court’s consideration of California’s Proposition 8 that stop short of declaring full marriage equality across the United States.
Gay marriage opponents are calling on the court to uphold the California provision by arguing that the justices should allow public and political debate over same-sex marriage to continue rather than impose a judicial solution. They also contend that states have a legitimate interest in encouraging heterosexual marriage and “responsible procreation and childrearing.”
The justices will hear argument in the California case on March 26 and in a separate challenge to the federal Defense of Marriage Act’s definition of marriage as between a man and a woman a day later.
Theodore Olson, the Republican lawyer who has embraced the issue of marriage equality, said he intends to ask for the broadest possible outcome when he argues to the court in March because gay men and lesbians are “denied the opportunity the rest of us have to get married and live in a family.” Olson and Democratic lawyer David Boies have formed an unlikely partnership to represent the challengers to Proposition 8, approved by California voters in 2008 on the same day Barack Obama was elected president. The ballot initiative overturned a state Supreme Court decision allowing gay marriage.
If the court were to adopt the gay couples’ most far-reaching argument, same-sex marriage bans would fall in California and the 40 other states that do not allow gay couples to wed.
Among the other possible results:
—The justices could uphold the state ban on gay marriage and say citizens of a state have the right to make that call.
—The court could endorse an appeals court ruling that would make same-sex marriage legal in California but would apply only to that state.
—The court could issue a broader ruling that would apply to California and seven other states: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. In those states, gay couples can join in civil unions that have all the benefits of marriage but cannot be married.
—The case could essentially fizzle without a significant ruling by the justices. That would happen if they were to find that the private parties defending Prop 8 have no right to be in court.
Olson said the effect of the latter ruling would leave in place U.S. District Judge Vaughn Walker’s decision that first declared the provision unconstitutional and would lead quickly to same-sex unions in California.
The biggest remaining question before the justices hear arguments next month is whether the Obama administration steps into the case on the side of gay marriage proponents and, if so, how forcefully it argues on their behalf. The administration faces a Thursday deadline at the high court.