The US Supreme Court [official website] heard oral arguments Tuesday in Hollingsworth v. Perry [transcript, PDF; audio], the first of two cases the court will hear this week on same-sex marriage [JURIST report; JURIST backgrounder]. In Tuesday's argument, the court considered the validity of Proposition 8 [JURIST news archive], a California referendum that revoked same-sex marriage rights. Same-sex marriage was briefly legal in California following a state Supreme Court decision and then overturned with a constitutional amendment created by Proposition 8. Early in the proceedings, the state of California declined to defend the law, and the backers of Proposition 8, ProtectMarriage.com [advocacy website], successfully intervened. The court heard arguments on whether Proposition 8 is constitutional under the Equal Protection Clause of the Fourteenth Amendment as well as whether the Proposition 8 supporters had standing to intervene under Article III [Cornell LII backgrounders].
The Proposition 8 supporters were asked to open their arguments with the standing issue. The supporters' attorney, Charles Cooper, argued that California's laws vested proposition backers and supporters with the right to defend the law. "I guess the point I want to make is that there is no question the State has standing, the State itself has standing to represent its own interests in the validity of its own enactments. And if the State's public officials decline to do that, it is within the State's authority surely, I would submit, to identify, if not all—any citizen or at least supporter of the measure, certainly those, that that very clear and identifiable group of citizens." He further argued that the proponents of the Proposition were not seeking recovery for their own injury but the injury to the State. The court then instructed him to proceed to the merits of the case, where he framed the issue as one that is part of an "ongoing democratic debate."
But consider the California voter, in 2008, in the ballot booth, with the question before her whether or not this age-old bedrock social institution should be fundamentally redefined, and knowing that there's no way that she or anyone else could possibly know what the long-term implications of profound redefinition of a bedrock social institution would be. That is reason enough, Your Honor, that would hardly be irrational for that voter to say, I believe that this experiment, which is now only fairly 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.The Proposition 8 supporters also argued that this is not a gender classification issue, rather than a sexual orientation issue, and that sexual orientation is not a suspect or quasi-suspect class.
Theodore Olson represented the respondents, a pair of gay couples who were married in the interim before Proposition 8 was enacted. Also asked to approach the standing issue first, Olson suggested that the proponents do not have standing to defend the law and said an alternative would be the appointment of special counsel. Olson also argued that marriage is the right of an individual, nonspecific to the genders of the parties involved. "[T]his is a measure that walls off the institution of marriage, which is not society's right. 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 is a personal right. It's a part of the right of privacy, association, liberty, and the pursuit of happiness." Justice Antonin Scalia asked Olson to explain when prohibiting same-sex marriage became unconstitutional. Olson and Chief Justice John Roberts also debated the meaning of the label "marriage," with Olson suggesting that, as a fundamental right, it is as important as labeling one who can vote in the US a citizen.
The Solicitor General, Donald Verrilli, also presented the views of the federal government. The government took no formal position on standing and did not brief the issue, but, when queried, Verrilli responded that "the better argument is that there is not Article III standing here." Verrilli then addressed the merits: "First, every warning flag that warrants exacting scrutiny is present in this case. And Petitioners' defense of Proposition 8 requires the Court to ignore those warning flags and instead apply highly deferential Lee Optical rational basis review as though Proposition 8 were on a par with the law of treating opticians less favorably than optometrists, when it really is the polar opposite of such a law. ... I do think the problem here with the arguments that Petitioners are advancing is that California's own laws do cut the legs out from under all of the justifications that Petitioners have offered in defense of Proposition 8, and I understand Your Honor's point and the point that Justice Kennedy raised earlier, but I do think this Court's equal protection jurisprudence requires the Court to evaluate the interests that the State puts forward, not in a vacuum, but in the context of the actual substance of California law. And here, with respect to California law, gay and lesbian couples do have the legal rights and benefits of marriage, full equality and adoption, full access to assistive reproduction, and therefore, the argument about the State's interests that Petitioners advance have to be tested against that reality, and they just don't measure up. "