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What You Need to Know As Prop 8 Hits the Supreme Court | The Nation

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Nan Hunter

Nan Hunter

Sexuality and gender: What’s law got to do with it?

What You Need to Know As Prop 8 Hits the Supreme Court


The US Supreme Court building. (AP Photo/J. Scott Applewhite)

Editor's Note: This post is republished from Nan Hunter's blog Hunter of Justice. Stay tuned for Nan's report back from the two days of oral arguments over same-sex marriage at the Supreme Court Tuesday and Wednesday!

The first gay marriage case to be argued (ever) in the Supreme Court is set for tomorrow at 10 am, in Hollingsworth v. Perry, the challenge to Prop 8. Here are some important points to listen for:

At the logical threshold of the case lies a question that has nothing to do with gay marriage: standing, a technical legal concept that has developed over many years of case law. Essentially (see a longer explanation here and a seven-part series here), the issue is whether only the state of California and its officials can defend Prop 8 or whether, since no officials were willing to do so, the groups that ran the pro–Prop 8 campaign can step into that role. If not, the appeal will have to be dismissed, and the original district court decision by Judge Vaughn Walker will go into effect. In other words, Prop 8 goes away, but the outcome is based on a ruling that creates no binding precedent for any other court (because district courts are the lowest level of federal courts).

The oral argument will provide the first indicator of how many Justices appear to be seriously examining this aspect of the case. Because standing law is so dense and because some of the equality issues may seem obviously right or wrong to the Justices, it would not surprise me if they use a big chunk of their time on Tuesday to ask questions about standing. That won’t necessarily mean that their opinions will omit discussion of the constitutional issues; it may just indicate that some of the Justices believe that debating gay marriage will produce more heat than light, while discussion of standing law might clarify something they remain unsure of.

On to the merits:

Charles Cooper, representing the defenders of Prop 8, will speak first and, assuming that he reserves time for a reply, also last. If there are tough questions about standing, he will be the target of those. But I doubt that he will begin his presentation on that issue. Instead, my bet is that he will open with an attempt to persuade the Justices of the key point in his reply brief: that while marriage of course centers on the commitment of two adults, what makes it worthy of all the benefits bestowed by law is the state’s interest in incentivizing marriage when those adults may have a child. Ergo, he argues, it is rational for the state not to extend those benefits to what he repeatedly calls “genderless” marriage. The big logical hole here is that California already extends all those material rights and responsibilities to same-sex couples, with or without children; all that is being withheld is the dignitary status of “marriage.” Surely some Justice is going to waltz him around the floor on that claim. It also seems possible, under Cooper’s theory, that states could bar infertile persons from marriage; of course they wouldn’t, but I think he has to concede that it would be permissible under the Constitution for them to do so. Finally, I do wonder if Justices Ginsburg, Sotomayor or Kagan will pursue the question of whether, if marriage truly is definitionally limited by gender, there might be a little problem with the constitutional prohibition on sex discrimination.

Ted Olson, representing the plaintiffs, has a different set of problems. His toughest questions will likely come from Justices worried about the consequences of a sweeping ruling that all laws banning same-sex marriages are unconstitutional. With popular support for gay marriage rising rapidly, they will query, why not let the democratic process produce the same ultimate result without shutting that process off by a judicial ruling (shades of Roe v. Wade debates). And, by the way, given recent gay rights successes, hasn’t this minority moved beyond the zone of political powerlessness that necessitates counter-majoritarian interventions? It will be interesting to see if Justice Scalia, who has been characterizing LGBT people as the favored and privileged mascots of cultural elites since Romer v. Evans in 1996, enters the fray on this point. Although Olson has not emphasized it, he could also win under the theory adopted in the Ninth Circuit, which held, that even if California had a rational basis for limiting marriage to different-sex couples, there was no rational basis for withdrawing access to marriage. (Prop 8 was preceded by a California Supreme Court decision holding that gay couples had a state constitutional right to marry.) Finally, Olson is surely preparing his rejoinder for the polygamy question: If marriage is a fundamental right that includes same-sex marriage, why would it not also include plural marriage?

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Following Olson will be Donald Verrelli, the solicitor general, representing the United States. The federal government is not a party, but filed an amicus brief in support of the plaintiffs and then asked for, and was granted, argument time. The SG brings an alternative basis for a pro-plaintiff ruling to the table, along with a potential weakness. The Justice Department is arguing in both Perry and Windsor (the DoMA challenge), that classifications based on sexual orientation must be subjected to heightened scrutiny under the Equal Protection Clause. The soft spot is that in Windsor, they have conceded that under the traditional, highly deferential version of the rational basis test, DoMA is valid. It’s unclear whether they would concede that point as to Prop 8. More interesting is DoJ’s urging of the “nine state solution,” i.e., their argument that even if a ban of gay marriage is not unconstitutional everywhere, it is surely unconstitutional in California, where the state’s recognition of full parental rights for gay parents belies any intent to limit relationship incentives based on childraising. In addition to California, there are eight other states that have civil union or partnership systems providing essentially equivalent material benefits but not the status of “marriage”: Colorado, as of last week, plus Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. If the Court opts for this middle way, the number of states with equal marriage laws would jump from nine to eighteen (plus DC).

Each side will have thirty minutes of argument time; the time on the plaintiffs’ side is divided, with twenty minutes for Ted Olson and ten minutes for the solicitor general. (The arguments can run longer if the Justices grant permission for an exchange to continue past the cut-off.)

If Congress ships the Postal Service down the river, will the Constitution go with it? Read John Nichols’s take.

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