Hollingsworth v. Perry
Two same-sex couples -- Kristin M. Perry and Sandra B. Stier, and Paul T. Katami and Jeffrey J. Zarrillo -- are challenging California's ballot initiative that defines marriage as between a man and a woman. Although the court could rule more narrowly, this case asks the question of whether there is a fundamental right to gay marriage.
Jurisdictional issues: (potential of the case being dismissed without reaching the merits)
The original sponsors of Prop 8 -- a group called Protectmarriage.com -- are defending the law because California public officials refused to do so. Before getting to the merits of the case, the Supreme Court will decide whether the proponents have the legal right to be in Court. If the Court finds there is no legal "standing," the case will be dismissed and the District Court ruling that struck down Prop 8 will most likely stand.
Charles J. Cooper, a lawyer representing ProtectMarriage.com, argues in court papers that the California Supreme Court gave the sponsors the state's authority to defend the law and the Supreme Court should respect that.
Opponents of Prop 8 say that "standing" requires an injury and proponents of Prop 8 cannot show they will be harmed if same-sex couples marry. (Walter Dellinger, Larry Tribe and conservative former conservative federal judge Michael McConnell all think the Court will dismiss on these grounds. )
The question before the court is whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.
Prop 8 supporters' arguments: The central thrust of Cooper's arguments is that Californians who voted in favor of Prop 8 opted "in good faith" to preserve the traditional definition of marriage because they believe it continues to meaningfully serve important societal interests. Specifically, Cooper argues that marriage is "inextricably linked to the objective biological fact that opposite-sex couples and only such couples, are capable of creating new life together, and, therefore, are capable of furthering, or threatening, society's existential interests in responsible procreation and childbearing." He says that Prop 8 leaves undisturbed expansive domestic partnership laws that provide gays and lesbians with "some of the most comprehensive civil rights protections in the nation." He says the court should defer to the democratic process, and argues: "[T]he definition of marriage has always been understood to be the exclusive province of the States, which, subject only to clear constitutional constraints, have absolute right to prescribe the conditions upon which the marriage relation between their citizens shall be created."
Prop 8 opponents arguments: Theodore Olson and David Boies are asking the Court to find a fundamental right to gay marriage in the Constitution.
"The unmistakable purpose and effect of Proposition 8," they write, "is to stigmatize gay men and lesbians -- and them alone -- and enshrine in California's Constitution that they are unequal to everyone else, that their committed relationships are ineligible for the designation 'marriage' and that they are unworthy of that most important relation in life."
They dismiss the argument that Prop 8 serves the interest of promoting responsible procreation.
"There are many classes of heterosexual persons who cannot procreate unintentionally, including the old, the infertile and the incarcerated," they write.
They acknowledge that the federal system enables states to serve as "laboratories of democracy," but say "our Constitution does not permit States the power to experiment with the fundamental liberties of citizens."
The U.S. government supports the opponents of Prop 8, saying that laws that ban gay marriage should be subject to heightened scrutiny from the Courts. The government argues that Prop 8's denial of marriage to same-sex couples, particularly where California at the same time grants same-sex partners all the substantive rights of marriage, is a violation of equal protection. Six other states currently have similar laws.
In briefs, Verrilli writes that the ballot initiative "forbids committed same-sex couples from solemnizing their union in marriage, and instead relegates them to a legal status -- domestic partnership -- distinct from marriage but identical to it in terms of the substantive rights and obligations under state law."
Some Ways the Court Could Rule:
There are many ways the court could rule in this case. Among the possibilities:
At oral arguments, it didn't seem likely that the Court was ready for a broad ruling that would say that all bans on same-sex marriage violate the Constitution. The Court could strike down Prop 8 on narrower grounds and say, for example, that California could not give gay couples all the benefits of a robust domestic partnership law, but strip them of the word "marriage." Such a ruling could affect at least six other states with similar laws.
The Court could also issue an opinion specific to California's history with the gay marriage. The Court could say that California could not withdraw from gay and lesbian people the right to marry -- a right they once had -- without a rational basis for doing so. Such a ruling would apply only to California.
The Court could, of course, uphold Prop 8, which would allow states to continue to pass bans on gay marriage.
Keep in mind, there is a real chance in this case that the Court will not reach the merits. The Court might decide that the original proponents of Prop 8, who stepped in to defend the law when state officials refused to do so, did not have the legal right to be in Court. Such a ruling would mean the District Court ruling that struck down Prop 8 on broad grounds would most likely hold. Legal experts are divided on the implications of such a ruling, as there is some disagreement about whether the lower court's injunction applies statewide, or just to the couples who brought suit. Many believe that same-sex marriage will most likely resume under such a ruling, but the timing is unclear.