More than four years after California voters approved Proposition 8, the state’s ban on same-sex marriage received a full hearing before the U.S. Supreme Court. It’s been a long and winding road to the high court – a road paved with joy, anger, euphoria and fear.
KQED and the California Report are providing full coverage of the Proposition 8 and DOMA hearings.
For almost two hours Supreme Court justices heard arguments on the federal Defense of Marriage Act. The court covered wide ground, once again spending a significant amount of time on the topic of standing. This time the questions were around whether the Bipartisan Legal Advisory Group (BLAG), under the leadership of House Speaker John Boehner, R-Ohio, had the legal right to sue. As in Proposition 8, the standing question could give the court the option to avoid the case by ruling that it should not have gone through the court system.
The justices also spent time on whether the federal government should be in the marriage business at all, or if that should be left to the states. Several justices also challenged President Barack Obama's 2011 decision to stop upholding DOMA, and what kinds of precedent that sets. Solicitor General Solicitor General Donald Verrilli Jr. often tried to bring up the equal protection clause, and whether it applies to gays and lesbians. However, the court often took that question and went back to federal versus states legal rights.
UC Davis Law Professor Vikram Amar discussed the oral arguments with KQED News.
Amar: If one is going to read tea leaves based on the oral argument, it seems as if the court is not inclined to do something huge, in striking down the laws of 40 states that currently prohibit same-sex marriage. My big take-away from this has always been, the court did not really want to take these cases. … They may end up doing nothing at all, because both cases may get resolved on procedural standing grounds.
The basic idea is courts exist to decide crisp disputes, not just answer questions everyone wants answered. So unless you have somebody who is a plaintiff who has a lot at stake, and you have a defendant who is an appropriate defendant, then the court simply should not be able to render a ruling.
After a long and winding road, Proposition 8 had its day at the U.S. Supreme Court on Tuesday. For more than an hour, the justices of the high court grilled attorneys on California's same-sex marriage ban.
The oral arguments were dominated by the question of standing, which focused on whether the authors of Prop. 8 have the legal right to defend the measure in court when the state refused to do so. Justices also grappled over the meaning of marriage and what role the court system should have in changing long-held traditions.
The questions that justices ask can shed light on their concerns and how they might rule. KQED spoke with Vikram Amar, a professor of law at UC Davis, about what certain arguments could mean.
Amar: I thought there were three, maybe four, maybe five justices already who expressed significant skepticism about whether the sponsors have standing to defend Prop. 8.
When Theodore Boutrous, Jr. hopped on the phone the other day from Washington, he was giddy. “We just got a unanimous ruling at the Supreme Court!” He was referring to the 9-0 decision on behalf of his client, an insurance company fighting a class action case.
I asked Boutrous, who goes by “Ted”, how many times he’s argued in front of the Supreme Court. “Twice, “ he said. “And I’ve got 18 votes!” When I suggested he should retire while he has a perfect record, he emailed back “It’s tempting!”
Since the start of the Prop. 8 debate in federal court four years ago, Boutrous has been overshadowed by his high profile colleague, attorney Theodore Olson. Both are partners at Gibson, Dunn & Crutcher (Boutrous in the Los Angeles office, Olson in D.C.) and have worked together for nearly 30 years. Olson is renowned in legal circles as a leading conservative, which makes his pairing with David Boies (whom he faced on opposite sides of the Bush v. Gore case in 2000) so interesting.
Boutrous may not get the “ink” they get, but he’s been an integral part of the legal strategy against Prop. 8.
Andy Pugno, a co-author of Proposition 8 and general counsel at ProtectMarriage.com, is part of the legal team defending the same-sex marriage ban at the U.S. Supreme Court Tuesday.
Pugno discusses with KQED's Scott Shafer the major themes of their legal argument as well as what changing public opinion means for the case.
Even though prominent Republicans, Fortune 500 companies and the public is becoming more accepting of same-sex marriage, Pugno said he thinks it will not have much of an effect on the justices.
"I think the justices are accustomed to avoiding being sucked into a political debate," Pugno said. "I think they'll be mindful of their limited role as judges to interpret existing law, not to make new law."
To us non lawyers it looks pretty simple: either gay people can legally marry each other or they can't.
But as the Supreme Court prepares to rule on California's Proposition 8, the justices will weigh multiple options. Some decisions would settle the question throughout the country for the foreseeable future. Some could leave it dangling for years to come.
The high court will hear arguments on the case on Tuesday, with a decision expected in June.
To start with, the court isn't just taking on Prop. 8, the California constitutional amendment that banned same-sex marriage. It's also tackling the Defense of Marriage Act, the federal law that denies federal benefits of marriage to same-sex couples. The court will hear arguments on the DOMA on Wednesday. And the two decisions are intertwined.
On Valentine's Day last month, about a dozen gay and lesbian couples showed up at San Francisco City Hall. They wanted something they knew they couldn't have: A marriage license.
The protest, organized by Marriage Equality USA, happens every year. And every year the couples are turned away.
Thom Watson from Daly City came with his partner.
"You're really never fully prepared for what it's going to feel like yet again to be turned down for something that you want so badly and that other people take for granted," Watson said.
The right to get that legal document from a county clerk is what Tuesday's U.S. Supreme Court hearing is all about: whether California's Proposition 8 — a constitutional amendment defining marriage as a union of a man and a woman — violates equal protection under the law guaranteed by the U.S. Constitution.