High court hears monumental marriage equality case

A divided U.S. Supreme Court on March 26 heard oral arguments in the first of two cases that may lead to landmark rulings on marriage equality for same-sex couples.

The arguments were presented on Hollingsworth v. Perry, 12-144, which challenges California’s Proposition 8, a voter-approved constitutional amendment barring same-sex couples from marrying in the state. The question for the nation's highest court is whether the Equal Protection Clause in the Fourteenth Amendment includes a right for same-sex couples to marry.

Twenty-nine other states also have constitutional amendments against gay marriage and 10 states have laws defining marriage as the union of a man and a woman. Nine states and the District of Columbia have legalized gay marriage, while New Mexico law is silent on the issue.

The justices might vote in a private conference on the Prop 8 case as early as this week, but a public decision will not be released until late June, when the justices also will issue a ruling on the Defense of Marriage Act case they will hear on March 27.

Oral arguments began at about 10:10 a.m. EST. A first report from the hearing was tweeted by ScotusBlog at about 10:45 a.m. and said, “Breaking: 1st update- #prop8 unlikely to be upheld; either struck down or #scotus won’t decide case. More in 30 mins.”

The next word came in another ScotusBlog Tweet shortly after 11 a.m. EST that suggested Justice Anthony Kennedy, considered the swing vote on the nine-member court, seemed uncomfortable with overturning Proposition 8 and suggested the justices could simply dismiss the case, which would allow the lower court ruling to stand.

Such an outcome would clear the way for same-sex couples to marry in California, which was allowed before the November 2008 vote on Prop 8, but it would not impact other states.

The couples challenging Prop 8, with representation from American Foundation for Equal Rights attorneys Theodore Olson and David Boies, want the court to strike down the California amendment but also the provisions in other states that define marriage as the union of a man and a woman.

Olson said, “This discrimination cannot be squared with the principle of equality and the unalienable right to liberty and the pursuit of happiness that is the bedrock promise of our Constitution. The day it is ended, we will be closer to fulfilling the dream of all Americans.”

Boies, at a press conference after the arguments, described the hearing as “thoughtful.”

“It's now in the hands of the Supreme Court,” he said. “It's been a long journey here over the past three and a half years, and we are all greatly encouraged by the imminent decision. The remarkable thing that happened in there is that there was no attempt to defend the ban of gay and lesbian marriage – all that was discussed in there is whether this should be decided at the state level. But our federal constitution grants fundamental rights to all Americans.”

Proposition 8 is not being defended by the state of California, whose top elected officials said the amendment is unconstitutional. Instead, Prop 8 is being defended by those who campaigned for the ballot initiative, with representation from Charles Cooper, who was an assistant Attorney General in the Reagan administration.

Justices Sonia Sotomayor, Elena Kagan, Stephen G. Breyer and Ruth Bader Ginsburg had hard reactions to Cooper’s linking marriage to childbearing. Kagan, for one, asked Cooper whether states could ban people over age 55 from marrying because, generally, they won’t be giving birth to children.

The justices also had questions for Cooper about his client’s standing before the court, about whether private citizens can defend a state law, even when the state declines to offer a defense.

Chief Justice John Roberts said, “I don’t think we have ever allowed something like that.”

The two couples seeking to marry in the case, Kris Perry and Sandy Stier, and Paul Katami and Jeff Zarrillo, attended the arguments.

Afterward, Perry said, “Today is a monumental day, not just for Sandy and me, but for the millions of other Americans across the country who have waited for years for the Supreme Court to consider whether they too should enjoy the right to marry. Witnessing today’s proceedings gives me hope that our four sons, and kids across America, will soon live in a country where love and equality prevail.”

Katami said, “Today’s oral argument before the Supreme Court marks the start of the final chapter of our 4-year journey toward equality. The argument advanced by our incredible legal team to the nine justices is clear and unequivocal: equal justice under law means equal justice for all. We are confident that one day, very soon, this core American value will be realized and Proposition 8 and laws like it throughout the nation will be eliminated.”

As the March 26 hearing began, thousands rallied – for and against gay marriage – outside the courthouse in temperatures just below freezing. There also were marriage equality rallies on the eve of the hearing and more scheduled for later in the day.

Outside the Supreme Court, U.S. Rep. Eleanor Holmes Norton told the crowd, “There are no second-class citizens in America. And there are no second-class marriages in America.”

Rea Carey of the National Gay and Lesbian Task Force said, “Today we stand on the steps of the Supreme Court and on the threshold of history, as the highest court in the land considers one of the most defining civil rights issues of our time. Our gathering at the Supreme Court, as well as all of the powerful events occurring in every state across the country, reflects the vast diversity of support for marriage equality. The array of people and organizations standing up for equality is historic: nearly 300 leading businesses, 30 retired military leaders, 131 top Republicans, 214 sitting members of Congress, and dozens of religious, labor, legal and family health organizations. This is a watershed moment for America.”

Analysts say the court could take several routes in deciding the Prop 8 case. The justices could:

• Uphold Prop 8;

• Overturn all anti-gay marriage amendments and laws;

• Uphold the appeals court decision but keep the ruling narrow, applying only to California;

• Overturn the bans in California and other states where same-sex couples have the benefits of marriage but cannot marry.

• Dismiss the case.

Opinion polls show a majority of Americans support marriage equality. Those same polls show increasing support among conservatives for legalizing same-sex marriage. GOP strategist Karl Rove recently said he could imagine a Republican presidential candidate supporting gay marriage.