Gay Marriage Now Before the U.S. Supreme Court

April 1, 2013 in GLBT Issues, Top News, U.S. News

Gay Marriage Supporters

Gay marriage supporters protest before Supreme Court. Source: Business Insider.

Last week, the United States Supreme Court heard oral arguments in the current case of Hollingsworth v. Perry regarding California’s controversial Proposition 8.  The 2008 voter initiative effectively overturned the state Supreme Court’s decision to allow same-sex marriage. Human Rights Campaign, a prominent gay-rights advocate, declared the U.S. Supreme Court hearing on the matter a “watershed moment” in civil rights history.

Opponents of same-sex marriage argued that allegedly discriminatory laws are acceptable, saying marriage is a procreative institution. Same-sex couples cannot produce offspring, and therefore do not merit the institution of marriage, or any of the privileges and protections it affords. They further argued that gays are a powerful, political minority, not requiring any special protection under the law.

Associate Justice Sonia Maria Sotomayor asked at the hearing, “outside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the Government could make? Denying them a job, not granting them benefits of some sort, any other decision?”

HRC points out that in 34 of the 50 states, one can lose one’s job for being gay, lesbian, bisexual or transgender. There is no legal recourse.

Sotomayor continued, “then why aren’t they a class? If they’re a class that makes any other discrimination improper, irrational, then why aren’t we treating them as a class for this one thing? Are you saying that the interest of marriage is so much more compelling than any other interest as they could have?”

Associate Justice Anthony McLeod Kennedy pointed out, “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, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status.”

U.S. District Court Judge Vaughn Walker, a gay man himself, previously overturned Proposition 8 on Aug. 4, 2010, in the case of Perry v. Schwarzenegger. Walker opined the California constitutional amendment violated both the due process and equal protection clauses of the U.S. Constitution. Walker issued an injunction against enforcement, which was upheld by the Ninth Circuit Court of Appeals Feb. 7, 2012, pending appeal.

Feb. 7, 2012, a Ninth Circuit Court of Appeals panel affirmed in a 2–1 decision Walker was not obligated to recuse himself from the case for being gay.

Proposition 8’s defenders filed a petition of certiorari with the U.S. Supreme Court  on July 30, 2012. This requests the high court review the case.  On Dec. 7, 2012, the Supreme Court granted the petition, resulting in the current hearings.

Associate Justice Stephen Gerald Breyer said at last Tuesday’s hearing,  “Am I not clear? Look, you said that the problem is marriage; that it is an institution that furthers procreation.

“And the reason there was adoption, but that doesn’t apply to California. So imagine I wall off California and I’m looking just there, where you say that doesn’t apply. Now, what happens to your argument about the institution of marriage as a tool towards procreation? Given the fact that, in California, too, couples that aren’t gay but can’t have children get married all the time.”

Associate Justice Elena Kagan, responding to the idea that marriage is purely procreational, added, “if the couple — I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.”

This was received by open laughter in court.

Ted Olson, the lead attorney challenging Proposition 8 later added, “I know that you will want me to spend a moment or two addressing the standing question, but before I do that, I thought that it would be important for this Court to have Proposition 8 put in context, what it does. It walls-off gays and lesbians from marriage, the most important relation in life, according to this Court, thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal, and not okay.”

Republican-nominated Chief Justice John G. Roberts, Jr. began last week’s hearing with, “I’m sorry, are you finished? …a State can’t authorize anyone to proceed in Federal court, because that would leave the definition under Article III of the Federal Constitution as to who can bring — who has standing to bring claims up to each State. And I don’t think we’ve ever allowed anything like that.”

The statement indicates Roberts does not recognize Proposition 8’s proponents legal standing to argue before a federal court.

The U.S. Supreme Court is expected to issue a ruling sometime in late June, 2013.


The transcript of last Tuesday’s hearing is available here. An audio transcription is also available via National Public Radio.