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Supreme Court hears oral arguments in Prop 8 case

The U.S. Supreme Court hears oral arguments in Hollingsworth v. Perry, the case challenging the constitutionality of Proposition 8, California’s marriage equality ban.  The Justices’ questions focus primarily on the issue of standing and whether the official ballot proponents of Prop 8 (who stepped in to defend the constitutional amendment in court after California’s governor and attorney general declined to do so) are the proper parties to appeal the district court decision invalidating Prop 8.  On the question of the constitutional merits of Prop 8, the Court is split along partisan lines, with the four liberals leaning towards striking down the law, the four conservatives leaning towards upholding it, and swing Justice Anthony Kennedy somewhere in the middle.

On the issue of standing, the Justices express concern that a ruling which held that the proponents of Prop 8 do not have standing could allow state executives to nullify ballot initiatives that they did not like simply by refusing to defend them in court.  Charles Cooper, arguing on behalf of the plaintiffs, tells the Court that it should recognize a broad right to standing that would allow essentially any citizen of a state to defend a law in court if the state chose not to do so; the Justices express skepticism about this idea.  Ted Olson, representing the plaintiffs challenging Prop 8, contends that the state could appoint an officer that would defend the law in court who would understand the state’s fiduciary interest in a way that official ballot proponents cannot.  He argues that Cooper’s broad standing concept would essentially allow states to dictate federal Article III standing by saying that any individual could represent the interests of the state even if they cannot show a personalized injury to themselves.

As to the merits of Prop 8, Charles Cooper argues that the Supreme Court should allow the “earnest debate” happening across the country on the issue of marriage equality to play out instead of stepping in and ‘constitutionalizing’ the issue with a court ruling.  He also makes the ‘responsible procreation’ argument that he and the proponents have made before at the lower courts, contending that same-sex couples are not similarly situated with respect to opposite-sex couples since only the sexual union of opposite-sex couples can accidentally lead to conception.  The liberal Justices, especially Justice Kagan, push back on Cooper, asking him to point to any specific harms that marriages between same-sex couples would have for opposite-sex couples.

Justice Kennedy seems to alternate between favoring both sides of the issue during oral arguments.  At one point, he expresses an opinion that the sociological evidence about families headed by same-sex couples and whether there are any effects on children is new and not conclusive, but in the very same sentence he mentions that there is a specific legal injury present in the case suffered by the almost 40,000 children living in California with same-sex parents.

Ted Olson tells the Court that marriage is a fundamental right separate from procreation, arguing that Prop 8 holds gay and lesbian Californians back from accessing this right.  The conservative Justices challenge Olson, with Justice Scalia in particular asking point blank, “When did it become unconstitutional to exclude gays from marriage?”

In general, the Justices seem unconvinced that a ruling in favor of marriage equality can be limited only to California or the eight states with similar civil union/domestic partnership laws.  Kennedy in particular seems to throw cold water on the Ninth Circuit’s California-only ruling striking down Prop 8, which he characterizes as holding that a state could only go all the way to full marriage equality as opposed to going part way and providing some rights.

Solicitor General Donald Verrilli, Jr., speaking on behalf of the federal government, underscores the administration’s belief that Prop 8 should be considered under heightened scrutiny, a more searching form of judicial review.  California’s laws, he argues, blow up the proponents’ claims that the state has an interest in reserving marriage to opposite-sex couples since California affords full rights to same-sex couples.

When pressed by the Justices as to whether Verrilli is calling for a nationwide right to marriage equality (and when asked how a ruling could be limited just to the eight states which currently provide civil unions or domestic partnerships), Verrilli tells the Court that the administration is looking to keep the door open for different cases to arise from different states which might have their own reasons for prohibiting same-sex couples from marrying.

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