The Supreme Court heard arguments from both sides Tuesday morning in Hollingsworth v Perry, the challenge to Proposition 8’s constitutionality. Reaction from Washington suggests that there is uncertainty on which way the nine justices of the Court will rule, with their decision expected in June.
The issue of standing is still seen as a key component in this case following today’s courtroom debate. The judges probed both lawyers as to whether the proponents of Prop 8 had the standing to represent the state and people of California in appealing the district court’s ruling.
Ted Olson, representing Kristin Perry in opposing Prop 8, said after the hearing it would be a “win” for marriage equality if the court rules the proponents do not have standing. In this event, it’s expected that same-sex marriages would return to California.
The discussion in court lasted over an hour. Charles Cooper spoke first, on behalf of Hollingsworth et al, proposing Prop 8 be upheld. Cooper spoke about equal marriage being an “experiment” in states which have introduced it. He referred to how the concepts of “fidelity and monogamy” were central to the marital norm.
The justices questioned Cooper on what harm marriage equality would bring to society and whether this was about “regulating procreation.” Justice Kagan presented Cooper with the thought of whether “any couple where both people are over the age of 55” should be barred from marriage. Cooper responded by saying “it is very rare that both parties to the couple are infertile,” cuing laughter.
Justice Sotomayor asked Cooper: “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?”
Cooper replied, “Your honor, I cannot.”
However, the terminology of some judges has added to the speculation of what they will conclude. Chief Justice Roberts asked Olson if equal marriage amounted to “changing the definition of the label” regarding the institution.
Justice Kennedy, seen as the swing vote, noted that the Court was entering “uncharted waters” while Justice Alito declared that the idea of marriage equality was “newer than cell phones or the internet.”
Solicitor General Donald Verrilli warned the Court about delaying a decision, saying that “waiting is not a neutral act.” He added this “imposes real costs in the here and now” to gay parents and children.
Justice Kennedy agreed, saying “there is an immediate legal injury” if same-sex couples continue to be excluded from entering legal marriages, citing the estimated 40,000 children who are being raised by Californian same-sex couples.
When the court does finally reach a decision, they could decide on a narrow ruling or a broader one. The former would apply to overturning Proposition 8 in California while allowing other states to ban same-sex marriages. Alternatively, they could grasp the issue in a sweeping way, either establishing marriage equality in every state or validating all existing state bans.
The latter is more unlikely, according to reporters reacting to Tuesday’s hearing, given the Supreme Court’s general avoidance of sweeping legislation.