The case, Hollingsworth v. Perry, presents the simple question of whether Prop 8 unconstitutionally discriminates against gays and lesbians. But that simple question is so politically loaded that the justices spent much of the hour-long oral argument exploring how, exactly, the California constitutional amendment should fall.
On one end of the spectrum is the maximalist approach put forward by the two same-sex California couples, represented by conservative legal icon Ted Olson and liberal superlawyer David Boies. The unlikely lawyer duo -- they faced off against each other at the Supreme Court a dozen years ago in Bush v. Gore -- argue that any attempt to define marriage as between one man and one woman deprives gays and lesbians of equal protection and the fundamental right to marry.
The justices spent a good deal of time in the first half of the hour examining whether the parties defending Prop 8 had legal standing, and seemed to cast doubt on whether they did. Chief Justice John Roberts indicated that the case may not reach the central issue of whether gay couples are entitled to marriage, and might fall on issues of standing.
Gov. Rick Perry reiterated his stance against same-sex unions as the U.S. Supreme Court hears two arguments this week that looks at recognition of gay marriage.
“In Texas, it is fairly clear about where this state stands on that issue,” Perry said when asked by reporters about the Supreme Court cases.
“As recently as a constitutional amendment that passed – I believe, with 76 percent of the vote. The people of the state of Texas, myself included, believe marriage is between one man and one woman,” Perry said.
Sen. Tammy Baldwin (D-Wis.), the nation's only openly gay senator, plans to attend the Supreme Court's oral arguments on the Defense of Marriage Act on Wednesday. In a statement, she reflected on the progress the nation has made since she entered public service and said she is excited to attend the proceedings:
This is a historic week in the U.S. Supreme Court, where they will hear two important cases on marriage equality. Our country has made great progress since I first entered public service and was elected to political office in 1986. Over time, we have all seen with clarity that our nation is moving forward on issues of equal opportunity and fairness with a growing number of Americans supporting marriage equality. People’s views are changing because they believe that gay family members, friends, and neighbors deserve to be treated like everyone else in the United States.
This week, the U.S. Supreme Court will listen to arguments in cases that will decide whether our country becomes more equal, not less. The Court will decide whether gay American citizens can continue to be discriminated against simply because of who they love. On Wednesday, I look forward to being a witness to history as I am excited to have a chance to attend the U.S. Supreme Court proceedings. With these two historic cases, America’s highest court will have an opportunity to reflect the progress we have all witnessed across our country. They will have an opportunity to reaffirm our founding belief that all Americans are created equal under the law.
President Barack Obama was briefed on Tuesday's Supreme Court oral arguments, White House press secretary Jay Carney told reporters.
Carney didn't offer any reaction from the president to the day's proceedings, but confirmed that three administration officials attended the Prop 8 arguments, including senior adviser Valerie Jarrett and White House counsel Kathryn Ruemmler.
He also declined to get into predictions, noting that "recent history" has shown that oral arguments don't necessarily predict Supreme Court outcomes.
Andrew Sullivan, the longtime, openly gay, writer, editor and blogger, says that his ideal outcome for the Prop 8 case is not a ruling that the right to same sex marriage is constitutional, but a ruling that directs California's ban to be thrown out, and for each state to then consider the issue on its own schedule. From his post on Tuesday:
If I had my druthers, the perfect outcome would be dismissing the challenge to the ruling striking down Prop 8 on “standing” grounds, thereby allowing civil marriages to continue in California, striking down that part of DOMA which forbids the federal government from recognizing a state’s valid legal marriage licenses, on federalism grounds, and on heightened scrutiny grounds, striking down the “separate-but-equal” segregation of civil unions which are substantively identical to civil marriage.
The end result would be 17 states with marriage equality recognized by the feds, and the debate could then continue democratically as it should state by state.
Sullivan has been a leading voice in advocating same-sex marriage. So this may seem surprising. But he's also a conservative and his federalism approach to the gay marriage debate seems drawn from there.
Constitutional Accountability Center Vice President Judith E. Schaeffer issued this statement following arguments at the Supreme Court on Tuesday:
“When pressed by the justices, the lawyer defending Proposition 8 could not come up with any legitimate reason for excluding gay and lesbian couples from the freedom to marry. The Justices, while uncomfortable with Proposition 8, seemed hesitant to rule on the merits, but as Justice Kennedy noted, there was concern about branding the families of nearly 40,000 children in California as second-class.
"One important question Justice Scalia asked former Bush Solicitor General Theodore Olson, who defended marriage equality, was when it became unconstitutional to deny gay and lesbian couples the right to marry. The answer is 1868, when the American people added the Fourteenth Amendment's universal guarantee of equality to the Constitution.”
Ted Olson, the attorney representing the plaintiffs in the Prop 8 case before the Supreme Court, gave two thumbs up when asked by The Huffington Post how he felt about the day's oral arguments.
"We'll see," Olson added with a smile, as he slipped into a car and left the scene outside the court.
The possibility is quite real that the Supreme Court will rule that the parties who appealed the Prop 8 case to the Supreme Court don't have standing to make their appeal.
If that ruling is made it would, in effect, mean that the law remains invalidated, as the 9th U.S. Circuit Court of Appeals concluded, and that gay marriage in California is legal. It would also mean that the Supreme Court punted on the question of whether there is a constitutional right to same-sex marriage and that other states could continue to not recognize marriage equality.
California is a massive state. And legalizing same-sex marriage there would mean that roughly a quarter of the country would, at this juncture, be able to marry their gay or lesbian partners. But would it be a victory for the legal team that has argued, for years, that there is a constitutional right?
Apparently so. Ted Olson, the Bush solicitor general said as much during his press conference outside the court after oral arguments on Tuesday.
The two top lawyers arguing for the constitutionality of marriage addressed reporters shortly after arguing their case before the Supreme Court. And they readily admitted that they were completely in the dark about how the justices would rule on their arguments.
"Based upon the questions that the justices asked, I have no idea [how they will rule]," said Ted Olson, the former Bush administration solicitor general. "The court has several ways to decide this case."
Olson did note one positive development that came with the oral arguments. No one was actually questioning whether gay marriage should be prohibited, just whether or not it should be the purview of the state government or the federal government. His colleague, David Boies, echoed that point.
"There was no attempt to defend the ban on gay and lesbian marriage," Boies said. "There was no indication of any harm. All that was said in there is that this important constitutional right ought to be decided at the state level and not the federal government. But it is a federal constitution we have."
CNN's Legal Analyst, Jeffrey Toobin, who made some sweeping conclusions about the health care legislation following the Supreme Court's oral argument last year, was a bit more hesitant in his feedback today.
"I am now not in the business of making predictions but I think it is even harder to predict the result of this case after hearing this argument," Toobin said. The conservative justices, he added, seemed very skeptical about imposing same-sex marriage from the bench. But he also noted that the justices "seemed almost to be groping for an answer."
NBC's Pete Williams, however, went more out on a ledge in his analysis. "It's quite obvious SCOTUS isn't ready to issue a sweeping ruling on gay rights," he said.
Gov. John Hickenlooper supports civil unions and celebrated yesterday's historic civil unions bill passage in the Colorado House by posting this message on Facebook: #CivilUnions...
What took the LGBT rights movement to this moment, and indeed what has taken us to moments of truth and potential victory more often than not, are those who went against the established leaders and groups and ultimately pushed an agenda from the grassroots.
Liberty and equality are not the same, and while the Supreme Court could reach for either legal principle in a ruling declaring Prop 8 unconstitutional, the principle that it ends up choosing could matter a great deal.
Regardless of what is said in the oral arguments, a reading of the merits briefs makes it clear that the Court will have to rule in favor of gay marriage, and will improve the lives of 130,000 legally-married couples in same-sex marriages. Loading... Around the Web:
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Post to Facebook. Post to Blogger. Post to Twitter. Post to WordPress. Post to TypePad. Post to Tumblr. Post to Yahoo! Blogger login: Blogger password: Select blog: refresh list Remember me: Wordpress host: Wordpress login: Wordpress password: Remember me: TypePad host: TypePad login: TypePad password: Select blog: refresh list Remember me: Tumblr login: Tumblr password: Remember me: Community Notice: We've made some changes to our badge program, including the addition of our newest badge: Community Curator. View AllFavorites Recency | Popularity HUFFPOST SUPER USERJM BrodieBaltimore-based Denverite4564 Fans 52 seconds ago ( 2:07 PM)This is fascinating history. This era may go down as a positive age in terms of how we advanced on a number of social issues in the face of strong opposition.JM_Brodie: This is fascinating history. This era may go down ashttp://www.huffingtonpost.com/social/JM_Brodie/hollingsworth-v-perry_n_2952605_240039670.htmlHistory |Permalink |Share itThis comment has been down-ranked into oblivion. View comment You have not right to carry out this operation or Error this operation. Loading comments… HUFFPOST SUPER USERSymoneSayz22here149 Fans 2 minutes ago ( 2:07 PM)Today's news is like putting my hand on the hot stove. I know I shouldn't because its hot, but I can't help but do it out of curiosity.
My partner and I are one of the 18,000 couples who legally married in California in 2008, so it is hard not to take this fight for the last 5 years personally because it is me they are talking about. And I am tired of all the hate and just want it to be over.
Yet, I can't help but come and read the nonesense the anti gay crowd spews.
The tides are changing though and the end is in sight!!SymoneSayz22: Today's news is like putting my hand on the hothttp://www.huffingtonpost.com/social/SymoneSayz22/hollingsworth-v-perry_n_2952605_240039466.htmlHistory |Permalink |Share itThis comment has been down-ranked into oblivion. View comment You have not right to carry out this operation or Error this operation. Loading comments… HUFFPOST SUPER USERMikeInTheColaTwo snaps up!366 Fans 5 minutes ago ( 2:03 PM)After reading the transcript, I have a hard time believing the SC is going to punt. If they do, Cooper will be lucky. The justices, even Scalia, eviscerated him.MikeInTheCola: After reading the transcript, I have a hard time believinghttp://www.huffingtonpost.com/social/MikeInTheCola/hollingsworth-v-perry_n_2952605_240038290.htmlHistory |Permalink |Share itHUFFPOST SUPER USERJM BrodieBaltimore-based Denverite4564 Fans 19 seconds ago ( 2:08 PM)Scalia really is surprising me on this.JM_Brodie: Scalia really is surprising me on this.http://www.huffingtonpost.com/social/JM_Brodie/hollingsworth-v-perry_n_2952605_240039807.htmlHistory |Permalink |Share itThis comment has been down-ranked into oblivion. View comment You have not right to carry out this operation or Error this operation. Loading comments…This comment has been down-ranked into oblivion. View comment You have not right to carry out this operation or Error this operation. Loading comments… OletheaLife may be sweeter for this- I don't know.2135 Fans 30 minutes ago ( 1:38 PM)I particularly like the sign of the green check mark next to the heterosexual couple, which appears to be an African American couple. And it's a good thing they're both black, because not too long ago an interracial couple would be in the verboten category for the religious right.Olethea: I particularly like the sign of the green check markhttp://www.huffingtonpost.com/social/Olethea/hollingsworth-v-perry_n_2952605_240029952.htmlHistory |Permalink |Share itThis comment has been down-ranked into oblivion. View comment You have not right to carry out this operation or Error this operation. Loading comments… NoEmptyChair"I Bark for Barack"244 Fans 33 minutes ago ( 1:36 PM)It is amazing how the government hating right, the ones who talk of the "Nanny State", the ones who want government out of our lives, and want absolutely no restriction on guns, make an exception when it comes to women's rights and LGBT rights. Fine examples of hypocrisy and double standards.NoEmptyChair: It is amazing how the government hating right, the oneshttp://www.huffingtonpost.com/social/NoEmptyChair/hollingsworth-v-perry_n_2952605_240029077.htmlHistory |Permalink |Share itThis comment has been down-ranked into oblivion. View comment You have not right to carry out this operation or Error this operation. Loading comments… TrickleupperDemand creates jobs284 Fans 47 minutes ago ( 1:22 PM)The trouble seems to be that opponents of gay marriage have problems explaining how The state of California or any other state or even the Federal government have an interest in the relationship between two people. If my neighbor was gay and wanted to marry his or her partner, I would have great difficulty explaining how there relationship effects me. Scalia and other conservative members of the court may have a problem explaining how they can permit legislation of religious morals and at the same time conserve the 1st amendment.Trickleupper: The trouble seems to be that opponents of gay marriagehttp://www.huffingtonpost.com/social/Trickleupper/hollingsworth-v-perry_n_2952605_240024220.htmlHistory |Permalink |Share itSyllogizer769 Fans 10 minutes ago ( 1:58 PM)No, that is not the problem. A bigger problem is that Kagan, Ginsberg and Sotomayor interrupted Cooper with loaded questions leaving him feeling so nonplussed, he started to stumble over his own words.
There is no problem explaining how the state and Federal government have an interest in marriage: that was well stated by Loving v. Virginia and Maynard v. Hill. It is precisely because marriage is NOT just "a relationship between two people" that the state has an abiding interest. It is a social institution.Syllogizer: No, that is not the problem. A bigger problem ishttp://www.huffingtonpost.com/social/Syllogizer/hollingsworth-v-perry_n_2952605_240036666.htmlHistory |Permalink |Share itThis comment has been down-ranked into oblivion. View comment You have not right to carry out this operation or Error this operation. Loading comments…This comment has been down-ranked into oblivion. View comment You have not right to carry out this operation or Error this operation. Loading comments… HUFFPOST SUPER USERSpeakupNationPray for the dead and fight like hell for the livi1399 Fans 50 minutes ago ( 1:18 PM)Two things: The amount of time spent on standing leads me to believe that the SCOTUS will possibly pass this off on the basis of standing. They are likely looking for a way out.
And, the petitioners / plaintiff's entire case about injury to the state seems to based upon the ability to procreate. If that were a valid reason for banning same sex marriage, then marriages between different sex partners unable to procreate because of infertility or being elderly could also be banned. That is absurd. It is in the State's interest to have a stable society, and generally marriage does that. This will either be kicked for standing, or the petitioners will lose.SpeakupNation: Two things: The amount of time spent on standing leadshttp://www.huffingtonpost.com/social/SpeakupNation/hollingsworth-v-perry_n_2952605_240023024.htmlHistory |Permalink |Share itOletheaLife may be sweeter for this- I don't know.2135 Fans 40 minutes ago ( 1:28 PM)I agree. I don't know why the topic of procreation keeps coming up. It's undoubtedly a losing argument as the ruling would then affect all marriages.
Oh, well. Let them keep making it.Olethea: I agree. I don't know why the topic of procreationhttp://www.huffingtonpost.com/social/Olethea/hollingsworth-v-perry_n_2952605_240026488.htmlHistory |Permalink |Share itHUFFPOST SUPER USERSpeakupNationPray for the dead and fight like hell for the livi1399 Fans 25 minutes ago ( 1:43 PM)I think it is all they really have, since all other arguments are religious based. But yes, they are poisoning their own well with it.SpeakupNation: I think it is all they really have, since allhttp://www.huffingtonpost.com/social/SpeakupNation/hollingsworth-v-perry_n_2952605_240031836.htmlHistory |Permalink |Share itThis comment has been down-ranked into oblivion. View comment You have not right to carry out this operation or Error this operation. Loading comments… FlyReelMan59 Fans 17 minutes ago ( 1:51 PM)The religious right is tipping their hand as it is their intent to have a controlling affect on all marriages.FlyReelMan: The religious right is tipping their hand as it ishttp://www.huffingtonpost.com/social/FlyReelMan/hollingsworth-v-perry_n_2952605_240034527.htmlHistory |Permalink |Share itThis comment has been down-ranked into oblivion. View comment You have not right to carry out this operation or Error this operation. There are More Comments on this Thread. Click Here To See them AllLoading comments… Loading comments…This comment has been down-ranked into oblivion. View comment You have not right to carry out this operation or Error this operation. Loading comments…This comment has been down-ranked into oblivion. View comment You have not right to carry out this operation or Error this operation. Loading comments… Vintage59Seeking tickets to First Class891 Fans 53 minutes ago ( 1:15 PM)Scalia's head is so far in the—ah—sand that he keeps referring to the Attorney General of California as "he." Maybe he has gender identification issues?Vintage59: Scalia's head is so far in theâ??ahâ??sand that he keepshttp://www.huffingtonpost.com/social/Vintage59/hollingsworth-v-perry_n_2952605_240022040.htmlHistory |Permalink |Share itThis comment has been down-ranked into oblivion. View comment You have not right to carry out this operation or Error this operation. Loading comments… independenthere369 Fans 1 hour ago ( 1:07 PM)oral arguments on gay marriage.............okindependenthere: oral arguments on gay marriage.............okhttp://www.huffingtonpost.com/social/independenthere/hollingsworth-v-perry_n_2952605_240019052.htmlHistory |Permalink |Share itOletheaLife may be sweeter for this- I don't know.2135 Fans 41 minutes ago ( 1:27 PM)Do you suppose heteros don't engage in oral...um....arguments?Olethea: Do you suppose heteros don't engage in oral...um....arguments?http://www.huffingtonpost.com/social/Olethea/hollingsworth-v-perry_n_2952605_240025985.htmlHistory |Permalink |Share itindependenthere369 Fans 39 minutes ago ( 1:29 PM)eassssyyyyyyy......just a funny buy lineindependenthere: eassssyyyyyyy......just a funny buy linehttp://www.huffingtonpost.com/social/independenthere/hollingsworth-v-perry_n_2952605_240026694.htmlHistory |Permalink |Share itThis comment has been down-ranked into oblivion. View comment You have not right to carry out this operation or Error this operation. There are More Comments on this Thread. Click Here To See them AllLoading comments…This comment has been down-ranked into oblivion. View comment You have not right to carry out this operation or Error this operation. Loading comments… dudibob56 Fans 41 minutes ago ( 1:27 PM)Arguments on something so self evident. The form of man is so designed as to complement that of woman. Form follows function. Simple. The rest is propensity towards one or the other pole of male and female.dudibob: Arguments on something so self evident. The form of manhttp://www.huffingtonpost.com/social/dudibob/hollingsworth-v-perry_n_2952605_240026207.htmlHistory |Permalink |Share itivlichelle95 Fans 35 minutes ago ( 1:33 PM)Love is about hearts, not parts.ivlichelle: Love is about hearts, not parts.http://www.huffingtonpost.com/social/ivlichelle/hollingsworth-v-perry_n_2952605_240028140.htmlHistory |Permalink |Share itThis comment has been down-ranked into oblivion. View comment You have not right to carry out this operation or Error this operation. There are More Comments on this Thread. Click Here To See them AllLoading comments… OletheaLife may be sweeter for this- I don't know.2135 Fans 29 minutes ago ( 1:39 PM)You're talking about sex. This isn't about sex. It's about love and family and civil rights.
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