The contested measure, known as Proposition 8, reversed a California Supreme Court ruling five months earlier that had, for the first time, recognized a right of gay men and lesbians to marry.
The Prop. 8 case, and a similar challenge to the federal Defense of Marriage Act scheduled for argument on Wednesday, have become flashpoints in the nation’s culture wars. The high court showdown marks the first time in more than 40 years that the justices are being asked to examine what limits, if any, the Constitution imposes on the government’s power to restrict who can – and cannot – get married.
Currently, nine states and the District of Columbia recognize same-sex marriage. Eight others grant gay and lesbian couples rights under civil partnerships.
In contrast, 31 states have amended their constitutions to ban same-sex marriage – including California via Proposition 8. A handful of other states passed statutes banning the practice.
Former Solicitor General Theodore Olson, representing two same-sex couples challenging Prop. 8, told the justices that marriage is a fundamental right of all Americans, regardless of gender. He said the exclusion of gay and lesbian couples from marriage renders them second-class citizens.
“This is a measure that walls off the institution of marriage,” he said. Getting married is not society’s right, but an individual right, he added.
“This court again and again and again has said the right to get married … is a personal right. It’s part of the right of privacy, association, liberty, and the pursuit of happiness,” Mr. Olson said.