Supreme Court hears gay marriage arguments

Posted Wednesday, March 27, 2013 in News

Supreme Court hears gay marriage arguments

Gay marriage supporter joins thousands on the National Mall as the Supreme Court hears oral arguments on California's Prop 8.

by Gina Hamilton

WASHINGTON D.C. -- It will all come down to one man, Justice Anthony Kennedy, the swing vote on the Supreme Court.

Tuesday, the high court heard oral arguments from plaintiffs in California's Proposition 8 case, which was ruled unconstitutional by the Walker court in 2010 and again by the Ninth District in 2011.  The case involved the constitutionality of the state voting to deny equal protection to its gay citizens with respect to marriage law. 

First, the court has to decide whether those who are appearing before it to support Proposition 8 have legal standing to carry the water on this issue.  That's because the state of California declined to defend it when Hollingsworth (leader of an anti-gay marriage special interest group) v Perry (a lesbian couple who sued immediately after Prop. 8 was voted on) was challenged at the Ninth District Court of Appeals as well as a lower court, both of whom said it was unconstitutional. Stephen Reinhardt, who wrote the opinion for the Ninth Circuit, said, “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”   Essentially, his argument, like Judge Walker's in the lower court, was that the ban violated the 14th amendment's right to equal protection.  However, he declined to argue that all bans on same-sex marriage were unconstitutional, instead judging that Proposition 8′s revocation of a previously guaranteed right to marriage was unconstitutional and novel.

Charles Cooper, who served in the Reagan administration as assistant attorney general in charge of the Office of Legal Counsel, argued the case Tuesday for supporters of Proposition 8.  He is working for, led by Dennis Hollingsworth.  However, many of the justices, including Chief Justice Roberts, queried whether the organization has standing, since they will not be injured if gay citizens are allowed to marry in California.

If the court decides Hollingsworth and Cooper have standing, they will have to decide how to look at this issue.  There are levels of scrutiny for discrimination cases: strict scrutiny, intermediate scrutiny, and rational basis scrutiny.

Strict scrutiny requires the state to prove that the government has a compelling interest in the subject, that the law in question is narrowly tailored to suit that interest, and that the law in question is the least restrictive possible way to serve that interest. Intermediate scrutiny, which tends to be used in cases involving sex or gender-based discrimination, merely requires the government to show that the law in question serves a government interest through means that are substantively related to that interest. Rational-basis review, which has historically been the standard applied to discrimination on the basis of sexual orientation, simply requires the government to demonstrate that it has a legitimate interest in a subject and that the means chosen to further that interest is rationally related that interest.

During oral arguments, Kennedy seemed to suggest that intermediate scrutiny might be called for in this case.  Both Walker and Reinhardt found in their rulings that defenders of Prop. 8 had failed to meet even rational basis review, however, so requiring a stricter level of defense will be difficult in this case.

No matter which level of scrutiny the court chooses, it will be a difficult standard for the defendants to meet.  It is likely that if the court overturns Prop. 8, it will rule that either all same-sex marriage bans, or else just the reversal of previously guaranteed rights to marriage, fail rational-basis review. Or, if the court fails to overturn the law, it will likely rule that there is a rational basis for banning same-sex marriage or reversing previous rulings allowing it.

However, Cooper was permitted to present his arguments, many of which seemed to focus on biology.  Essentially, his arguments were that the state (which is not defending the case) has an interest in promoting marriage to produce offspring.  However, since many heterosexual marriages do not result in offspring, the argument is somewhat specious.  It is even less likely that homosexuals would participate in heterosexual marriages for the purpose of procreation.

Attorneys for the plaintiffs argued that Prop. 8 violated the 14th amendment to the Constitution, which grants equal protection under the law for all persons, including gays and lesbians and their children.  Justice Kennedy considered the harm that is done to children of gays and lesbians.  “On the other hand, there is an immediate legal injury or legal – what could be a legal injury, and that's the voice of these children. There are some 40,000 children in California ... that live with same-sex parents, and they want their parents to have full recognition and full status.”

Wednesday, the Court hears arguments on a Defense of Marriage Act question from Massachusetts, in which a lesbian couple, legally wed in Massachusetts, suffered harm after one of the partners died because of federal law.



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