Prop 8, De­fense of Mar­riage Act brought be­fore the court

GA Voice - - Front Page - By CHRIS JOHN­SON

Af­ter two days of ar­gu­ments, it's in the hands of the Supreme Court now.

The at­mos­phere at the U.S. Supreme Court was tense March 26 as jus­tices ham­mered attorneys with tough ques­tions on the con­sti­tu­tion­al­ity of Cal­i­for­nia’s Propo­si­tion 8 — with a par­tic­u­lar em­pha­sis on in­quiries about stand­ing.

The Prop 8 case was the first of two back-to­back Supreme Court hear­ings that could shape mar­riage equal­ity in the coun­try for years to come. GA Voice went to press be­fore the March 27 hear­ing on the De­fense of Mar­riage Act, so please visit www.the­ for com­plete cov­er­age.

Within moments of the open­ing of the oral ar­gu­ments in the Prop 8 case, known as Hollingsworth v. Perry, jus­tices in­ter­rupted both Charles Cooper, who is arguing in fa­vor of Prop 8, and Ted Ol­son, who is arguing against it on be­half of two plain­tiff gay cou­ples, with ques­tions about stand­ing.

The Cal­i­for­nia Supreme Court le­gal­ized same-sex mar­riage in 2008, but the Novem­ber 2008 bal­lot mea­sure known as Prop 8 amended the state con­sti­tu­tion to halt gay cou­ples mar­ry­ing.

Anti-gay groups, such as Pro­tec­tMar­riage. com, are de­fend­ing Prop 8 in court be­cause Cal­i­for­nia of­fi­cials — Gov. Jerry Brown and At­tor­ney Gen­eral Ka­mala Har­ris — have elected not to do so. Whether these groups have stand­ing to de­fend the law is a ques­tion posed by the court.

Ol­son, a for­mer U.S. solic­i­tor gen­eral un­der Pres­i­dent Ge­orge W. Bush, dis­puted the no­tion that anti-gay groups have stand­ing in the Prop 8 case be­cause they are not elected of­fi­cials.

“Be­cause you’re not an of­fi­cer of the State of Cal­i­for­nia, you don’t have a fidu­ciary duty to the State of Cal­i­for­nia, you’re not bound by the eth­i­cal stan­dards of an of­fi­cer of the State of Cal­i­for­nia to rep­re­sent the State of Cal­i­for­nia, you could have con­flicts of in­ter­est,” Ol­son said. “And as I said, you could be in­cur­ring enor­mous le­gal fees on be­half of the state when the state hasn’t de­cided to go that route.”

The is­sue of stand­ing is seen as cru­cial be­cause if the court de­ter­mines that anti-gay groups don’t have stand­ing to de­fend Prop 8, the rul­ing of U.S. Dis­trict Judge Vaughn Walker would re­main in place and mar­riage rights for same-sex cou­ples would likely be re­stored in Cal­i­for­nia.

Jus­tices known for be­ing con­ser­va­tive hinted at the way they may rule in the case. Al­ito, ap­pointed by for­mer Pres­i­dent Ge­orge W. Bush, cau­tioned against a rul­ing in fa­vor of same-sex mar­riage, which he said is “newer than cell phones and the In­ter­net.”

“There isn’t a lot of data about its ef­fect,” Al­ito said. “It may turn out to be a good thing. It may turn out not to be a good thing.”

As­so­ciate Jus­tice An­thony Kennedy, an ap­pointee of for­mer Pres­i­dent Rea­gan who’s con­sid­ered a swing vote, ac­knowl­edged that so­ci­o­log­i­cal in­for­ma­tion on the is­sue is new, but said chil­dren who are cur­rently liv­ing with same-sex par­ents are suf­fer­ing “le­gal in­jury” as a re­sult of Prop 8.

“There is an im­me­di­ate le­gal in­jury or le­gal — what could be a le­gal in­jury, and that’s the voice of these chil­dren,” Kennedy said. “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.”

Chief Jus­tice John Roberts, an­other Bush ap­pointee, made com­ments in an ex­change with Ol­son sug­gest­ing he doesn’t be­lieve gay cou­ples have a right to marry.

“I’m not sure that it’s right to view this as ex­clud­ing a par­tic­u­lar group,” Roberts said. “When the in­sti­tu­tion of mar­riage de­vel­oped his­tor­i­cally, peo­ple didn’t get around and say let’s have this in­sti­tu­tion, but let’s keep out ho­mo­sex­u­als. The in­sti­tu­tion de­vel­oped to serve pur­poses that, by their na­ture, didn’t in­clude ho­mo­sex­ual cou­ples.”

When Ol­son pointed out that gay cou­ples had the right to marry be­fore Prop 8 was passed, Roberts re­sponded by say­ing that it was only 140 days af­ter the Cal­i­for­nia Supreme Court ruled in fa­vor of same-sex mar­riage.

Roberts then asked Ol­son whether it’s more rea­son­able to view the sit­u­a­tion as the state court mak­ing a change to an in­sti­tu­tion that’s “been around since time im­memo­rial.”

“The Cal­i­for­nia Supreme Court, like this Supreme Court, de­cides what the law is,” Ol­son replied. “The Cal­i­for­nia Supreme Court de­cided that the Equal Pro­tec­tion and Due Process Clauses of that Cal­i­for­nia Con­sti­tu­tion did not per­mit ex­clud­ing gays and les­bians from the right to get mar­ried.”

A de­ci­sion in the case is ex­pected by the end of June.

Sup­port­ers of gay mar­riage ral­lied out­side of the Supreme Court March 26. (Photo by Michael Pa­trick Key / Wash­ing­ton Blade)

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