March 26, 2013 at 1:02 pm EDT | by Chris Johnson
HISTORIC: Supreme Court hears oral arguments on Prop 8
Supreme Court, gay marriage, marriage equality, Proposition 8, gay news, Washington Blade

The U.S. Supreme Court heard oral arguments on California’s Prop 8 on Tuesday. (Washington Blade photo by Michael Key)

The atmosphere at the U.S. Supreme Court was tense on Tuesday as justices hammered attorneys with tough questions on the constitutionality of California’s Proposition 8 — with a particular emphasis on inquiries about standing.

Within moments of the opening of the oral arguments in the Prop 8 case, known as Hollingsworth v. Perry, justices interrupted both Charles Cooper, who is arguing in favor of Prop 8, and Ted Olson, who is arguing against it on behalf of two plaintiff gay couples, with questions about standing.


Anti-gay groups, such as, are defending Prop 8 in court because California officials — Gov. Jerry Brown and Attorney General Kamala Harris — have elected not to do so. Whether these groups have standing to defend the law is a question posed by the court.

Associate Justice Sonia Sotomayor, who was appointed by President Obama, was among those asking questions about standing, saying it’s “counterintuitive” for a state to grant standing to proponents of a ballot initiative because their views are in support of the measure.

Cooper said the California Supreme Court in 2011 ruled that proponents of a ballot initiative like Prop 8 bear a responsibility to defend the measure in court should state officials decline to do so. Otherwise, public officials could effectively veto a measure by declining to defend it.

But Olson, a former U.S. solicitor general under President George W. Bush, disputed the notion that anti-gay groups have standing in the Prop 8 case because they are not elected officials.

“Because you’re not an officer of the State of California, you don’t have a fiduciary duty to the State of California, you’re not bound by the ethical standards of an officer of the State of California to represent the State of California, you could have conflicts of interest,” Olson said. “And as I said, you could be incurring enormous legal fees on behalf of the state when the state hasn’t decided to go that route.”

The issue of standing is seen as crucial because if the court determines that anti-gay groups don’t have standing to defend Prop 8, the ruling of U.S. District Judge Vaughn Walker would remain in place and marriage rights for same-sex couples would likely be restored in California.

Associate Justice Samuel Alito expressed skepticism during the oral arguments that proponents of Prop 8 lack standing to defend their ballot measure, indicating someone should be able to defend the statute if public officials decline to do so.

“In a state that has initiative, the whole process would be defeated if the only people who could defend the statute are the elected public officials,” Alito said. “The whole point … of the initiative process was to allow the people to circumvent public officials about whom they were suspicious.”

Justices known for being conservative hinted at the way they may rule in the case. Alito, appointed by former President George W. Bush, cautioned against a ruling in favor of same-sex marriage, which he said is “newer than cell phones and the Internet.”

“There isn’t a lot of data about its effect,” Alito said. “It may turn out to be a good thing. It may turn out not to be a good thing.”

Associate Justice Antonin Scalia said the legalization of same-sex marriage would necessitate the legalization of gay adoption, and sociologists have “considerable disagreements” on whether that causes harm to a child.

“I don’t think we know the answer to that question,” Scalia said.

It’s unclear what disagreements Scalia was referencing. Just last week, the American Academy of Pediatrics endorsed same-sex marriage, saying it helps children. Following Scalia’s remarks, Associate Justice Ruth Bader Ginsburg reminded Scalia that adoption isn’t at issue because California has legalized adoption rights for gay couples.

Associate Justice Anthony Kennedy, an appointee of former President Reagan who’s considered a swing vote, acknowledged that sociological information on the issue is new, but said children who are currently living with same-sex partners are suffering “legal injury” as a result of Prop 8.

“There is an immediate legal injury or legal — what could be a legal injury, and that’s the voice of these children,” Kennedy said. “There are some 40,000 children in California … that live with same-sex parents, and they want their parents to have full recognition and full status.”

Chief Justice John Roberts, another Bush appointee, made comments in an exchange with Olson suggesting he doesn’t believe gay couples have a right to marry. Many had hoped Roberts would vote to overturn Prop 8 because he sided with more liberal justices in the court decision upholding the health care reform law.

“I’m not sure that it’s right to view this as excluding a particular group,” Roberts said. “When the institution of marriage developed historically, people didn’t get around and say let’s have this institution, but let’s keep out homosexuals. The institution developed to serve purposes that, by their nature, didn’t include homosexual couples.”

When Olson pointed out that gay couples had the right to marry before Prop 8 was passed, Roberts responded by saying that it was only 140 days after the California Supreme Court ruled in favor of same-sex marriage.

Roberts then asked Olson whether it’s more reasonable to view the situation as the state court making a change to an institution that’s “been around since time immemorial.”

“The California Supreme Court, like this Supreme Court, decides what the law is,” Olson replied. “The California Supreme Court decided that the Equal Protection and Due Process Clauses of that California Constitution did not permit excluding gays and lesbians from the right to get married.”

The courtroom was crowded with observers who were both for and against Prop 8. Among those in attendance was California Lt. Gov. Gavin Newsom, who gained notoriety in 2004 when as San Francisco mayor he distributed marriage licenses to gay couples before the state court ordered him to stop.

U.S. Solicitor General Donald Verrilli argued against Prop 8 on behalf of the Obama administration, saying Prop 8 should be struck down because gay people have “suffered a history of discrimination” and the law should be subject to heightened scrutiny.

Verrilli said the Obama administration is “not taking a position” on whether same-sex marriage should be legalized throughout the country as a result of the ruling — but said the door could be open to such a ruling in future cases. Instead, Verrilli advocated the idea of a “nine-state solution.” Under that approach, states that offer domestic partnerships or civil unions, but not same-sex marriage, would have to allow gay couples to enter into the union of marriage.

The solicitor general said California’s own domestic partnership law providing gay couples legal benefits but not the distinction of marriage “undercuts” any rationale for withholding the label of marriage for gay couples.

But the idea of a nine-state solution seemed distasteful to justices. Associate Justice Stephen Breyer, an appointee of former President Bill Clinton, noted that states that provide absolutely no legal recognition to gay couples provide more harm to gay couples than the states that offer domestic partnerships.

Verrili also maintained the Obama administration isn’t taking a position on whether proponents of Prop 8 have standing to defend the law, but said the notion they lack Article III standing in court is the stronger argument.

Both the attorneys for and against Prop 8 also made their cases on the constitutionality of the measure that were along the lines of the briefs they previously submitted to the court.

Cooper maintained California voters in 2008 were essentially hitting a “pause button” by approving Prop 8 and were awaiting further information of the impact on other parts of the country where same-sex marriage is legal.

“That would hardly be irrational for that voter to say, I believe that this experiment, which is now only four years old, even in Massachusetts, the oldest state that is conducting it, to say, I think it better for California to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing,” Cooper said.

Olson, on the other hand, argued Prop 8 was unconstitutional because the measure walls off from a certain group of people the right to marry.

“It’s an individual right that this court again and again and again has said: the right to get married, the right to have the relationship of marriage a personal right,” Olson said. “It’s a part of the right of privacy, association, liberty and the pursuit of happiness.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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