Ten years to the day after the U.S. Supreme Court took up a challenge to Texas’s anti-sodomy statute, the court heard arguments for one of two same-sex marriage cases that could change the course of gay rights at a time when public opinion is shifting fast. The justices will take up the second case Wednesday.
Proposition 8:Officially known as Hollingsworth v. Perry, this case takes on Proposition 8, a 2008 California ballot initiative banning gay marriage. Berkeley couple Kris Perry and Sandy Stier, as well as Burbank’s Paul Katami and Jeff Zarrillo, agreed to be the named plaintiffs challenging Prop. 8, while Dennis Hollingsworth, a former Republican senator, represents Californians who argue the ban should stand. It has been a winding road: Since 2004, California issued 18,000 marriage licences for gay couples, the state Supreme Court invalidated those unions but then years later changed its mind and said the practice should be allowed; then California voters struck down gay marriage by voting “yes” to Prop. 8. Former California governor Arnold Schwarzenegger and current Governor Jerry Brown declined to defend the ban, which is why a private citizen, Mr. Hollingsworth, has taken up the cause.
Defence of Marriage Act:Wednesday marks the first time the Supreme Court will hear a challenge to the 1996 Defence of Marriage Act, or DOMA, which came into force under former president Bill Clinton (who, along with his wife and potential 2016 presidential candidate Hillary Clinton, has since come out in favour of same-sex marriage). The law blocks same-sex couples from receiving federal benefits that heterosexual couples enjoy. The lead plaintiff in this case is 83-year-old Edie Windsor, who paid $363,000 in federal estate taxes after her partner of 40 years died in 2009. Had Ms. Windsor been male, no such taxes would have been due.
Four Supreme Court justices – Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor – are considered reliably liberal, while four others – Chief Justice John Roberts, Antonin Scalia, Samuel Alito, and Clarence Thomas – lean conservative. That seems to leave Justice Anthony Kennedy, a California native, as the swing vote. But Chief Justice Roberts is also unpredictable and therefore one to watch: Last year, he voted to uphold most of the Obama adminstration’s Affordable Care Act, preserving the Democratic President’s signature legislation.
Over the course of 80 minutes of arguments on the Prop. 8 case on Tuesday, the Supreme Court justices saddled lawyers on both sides with a flurry of questions and signalled skepticism over whether now is the time to hear the case and, significantly, whether the court should decide on gay marriage in the first place.
“Why is taking a case now the answer?” Justice Sotomayor asked, while Justice Kennedy stated, “I just wonder if this case was properly granted.”
Justice Kennedy, the supposed swing vote, expressed sympathy for the 40,000 children of gay mothers and fathers who “want their parents to have full recognition and full status,” but he also lamented uncertainty about the societal consequences of same-sex marriage. As Justice Alito put it: “You want us to step in and assess the effects of this institution, which is newer than cellphones and/or the Internet?”
Lawyer Charles Cooper, who is arguing in favour of the ban, fielded tough questions over how exactly gay marriage harms traditional marriage. To that, Mr. Cooper said the state has an interest in procreation (to which another judge asked about the rights, then, of sterile heterosexual couples). The lawyer challenging the ban, Theodore Olson, struck back at Justice Kennedy’s comment that throwing out California’s ban would take the Supreme Court into “uncharted waters,” saying the court had been down this road once before, back in 1967 on interracial marriages.
Hundreds, if not thousands of gay-marriage proponents and opponents descended upon the sidewalks outside the court. They carried signs that read, “Marriage Is A Constitutional Right,” “‘I Do’ Support Marriage Equality,” “Kids Do Best With A Mom And A Dad,” and “My Sister And I Want Our Moms To Marry.” Some demonstrators had waited in line since Thursday to obtain a coveted seat to hear the historic argument. Rob Reiner, the actor and director who helped lead the charge against the California ban, was at the front of the line by Tuesday morning. But those with money and no time to spare opted for a different solution: Several Washington companies charged upwards of $50 an hour to wait in line for a yellow card entitling customers to a three-minute viewing. The cost of lining up since Thursday? Somewhere around $6,000.
The court, which is expected to issue decisions on both cases in late June, could decide on Prop. 8 and DOMA in a number of ways that bear varying degrees of impact.
On Proposition 8:
1. Same-sex marriage is a constitutional right. State bans must be overturned and gay couples across the nation must be allowed to wed. This is the most dramatic outcome and would echo a sweeping 1967 ruling that invalidated state bans on interracial marriage.
2. Gay marriage is not constitutionally protected so the court has no reason to overturn either Prop. 8 or any other state bans. This would please the lawyers arguing in favour of Prop. 8, since they argue the court should not override the democratic process by redefining marriage in some 40 states that do not allow same-sex couples to wed.
3. The California ban is not only struck down, but states that currently recognize same-sex unions or domestic partnerships must also allow gays and lesbians to marry. This would affect eight states, besides California, that recognize civil unions (Colorado, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island). This is the Obama administration’s preferred outcome – in fact, the White House sent a solicitor-general to the Supreme Court to present 10 minutes of arguments against Prop. 8.
4. Same-sex marriage is allowed in California.
5. Mr. Hollingsworth – a private citizen, and not the governor or attorney-general – has no standing so the case has no business being before the judges. Hollingsworth v. Perry, then, is thrown out altogether.
On DOMA:1. The legislation is unconstitutional since it denies equal rights. Federal benefits, then, should flow to same-sex couples. Ms. Windsor would get a $363,000 refund.
2. The act is constitutional and the traditional definition of marriage is upheld. Federal benefits continue to flow to heterosexual couples only.
3. The court cannot weigh in because Congress, which brought the case before the justices after the U.S. Justice Department opted not to challenge an appeal court ruling that deemed DOMA unconstitutional, has no standing.
The high-profile case against Proposition 8 has brought together two onetime Supreme Court opponents. Republican Theodore Olson and Democrat David Boies are leading the legal team representing the same-sex couples. They argued against each other in the Bush v. Gore case that settled the disputed 2000 presidential election in favour of George W. Bush.
Opposing them is Charles Cooper, who was Mr. Olson’s colleague at the Justice Department during the Reagan administration.
Witnesses to history pay for the privilege
Want to watch the U.S. Supreme Court hear two gay marriage cases this week? If you don’t want to wait in line, you could pay up to $6,000 for a seat.
The courtroom holds about 500 people, but seats are reserved for court staff, journalists and guests of the justices and lawyers arguing the case. After those people are seated, there were about 100 seats Tuesday for lawyers who are members of the Supreme Court bar and at least 60 seats for the general public. An additional 30 seats for the public will rotate every three to five minutes. Tickets for all those seats are handed out on a first-come, first-served basis.
For the most controversial cases, the line to get tickets can start to form about a day before. This time, the line started even earlier. By Monday morning there were more than three dozen people waiting, even as snow was falling. Several in the line said they were being paid.
For those willing to pay to get in, several Washington services will hold a person’s place in line. One company charges $36 an hour, another $50.
By the numbers
The percentage of Americans who now favour allowing gays and lesbians to marry legally, according to a Pew Research Center poll conducted in mid-March. Forty-four per cent are opposed.
The number of days in 2008 that gay marriage was legal in California before voters banned it with Proposition 8.
The number of gay couples that married in California during the window when it was legal.
Sources: Associated Press, New York Times