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.