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New Times / News

The following article was posted on March 27th, 2013, in the New Times - Volume 27, Issue 35 [ Submit a Story ]
The following articles were printed from New Times [] - Volume 27, Issue 35

SCOTUS hears Proposition 8 arguments


The U.S. Supreme Court listened to oral arguments March 26 in the case challenging the constitutionality of a ban on same-sex marriage passed by California voters in 2008. Gay rights groups—backed by the Obama administration—assert that Proposition 8 violates the Equal Protection Clause of the 14th Amendment.

Justice Anthony Kennedy, the bench’s expected swing voter on the same-sex marriage issue, offered morsels of support to Proposition 8 opponents. However, he also expressed a reluctance to issue the kind of landmark same-sex marriage ruling gay rights groups want.

“The problem with this case is that you’re really asking … for us to go into uncharted waters,” Kennedy said. “You can play with that metaphor—it’s a wonderful destination or it’s a cliff.”

Renowned trial lawyer David Boies and former Solicitor General Ted Olson argued on behalf of gay couples challenging Proposition 8. The two appellate advocates previously assumed opposite podiums in Bush v. Gore, the U.S. Supreme Court case that decided the outcome of the 2000 presidential election.

The back-and-forth between advocates and the justices reached a crescendo when Justice Antonin Scalia asked when it became unconstitutional for a state to exclude same-sex couples from marriage.

“When did it become unconstitutional to prohibit interracial marriages?” Olson responded.

A significant portion of oral argument focused on what effect allowing same-sex marriage nationwide would have on the family unit. Attorney Charles Cooper argued this point on behalf of Proposition 8 supporters.

“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,” he said.

Although the issue seems straightforward, the ruling could swing any number of ways if the court rules in favor of same-sex marriage. It could strike all laws prohibiting same-sex marriage bans, just those eight that distinguish between civil unions and marriage, or simply Proposition 8.

Alternatively, the justices could find that Proposition 8 supporters lack standing to appeal their Ninth Circuit loss when California has refused to defend the law.

“How are [supporters] distinguishable from the California citizenry in general?” Justice Ruth Bader Ginsburg asked.

Disposing of the appeal on standing grounds would only overturn the California ban. The Ninth Circuit found Proposition 8 unconstitutional in 2012 because California—and no other state—extended marriage rights to same-sex couples only to take them away again.

The following day, justices heard arguments to overturn a section of 1996’s Defense of Marriage Act that denies certain federal benefits to same-sex spouses recognized by the laws of their state.

Legal commentators expect the Supreme Court to rule on both cases no earlier than June.