By Elizabeth Gill, ACLU of Northern California Staff Attorney
Today the LGBT rights world was a flurry of activity, with Facebook feeds full of red for marriage equality and people the country over intently focused on what was happening inside the U.S. Supreme Court.
Sometimes the oral arguments in a case are like tea leaves that make it relatively easy to predict an outcome. But today’s Supreme Court argument in Hollingsworth v. Perry, the constitutional challenge to California’s Proposition 8, provided few such clues. What’s clear is that the Justices are all deeply engaged in both the questions on the jurisdiction and the merits that the case presents – and that’s a good thing.

Jurisdiction

On jurisdiction (the issue of whether the case is properly before the Court), the Justices insisted that all parties arguing first address whether the Prop 8 proponents had standing to appeal the case. The issue arose because after the district court found Prop 8 unconstitutional in 2010, the State of California chose not to appeal the decision. The Ninth Circuit Court of Appeals, however, concluded that the initiative proponents of Prop 8 – the folks who put Prop 8 on the ballot in 2008 – had the right to appeal the district court’s decision on behalf of the State.
Questions from the Court made it clear that this issue is very much up in the air. Justices Sotomayor and Ginsburg noted that the Prop 8 proponents have no relationship with the State, suggesting that they may not think that the proponents should be able to represent the State in defending a state law. Yet Justice Kennedy worried that not allowing the proponents to appeal would “give the State a one-way rachet,” thereby allowing Governors and other state officials “to thwart the initiative process.”

Do same-sex couples have a constitutional right to marry?

The questions from the Court on the merits (ie, whether same-sex couples in California have a constitutional right to marry) also didn’t signal any clear outcome. Some lines of questions were predictable. In response to the proponents’ argument that the State’s interest in marriage lies solely in regulating procreation, Justices Sotomayor and Ginsburg pushed back on the rationality of excluding same-sex couples from marriage while including infertile couples, older couples, and prisoners. Justices Scalia and Alito focused on the “newness” of marriage for same-sex couples and a decision on Prop 8 applying to all other states, even those that, unlike California, have not recognized equality for same-sex couples in everything but marriage.

Other lines of questioning

Yet other lines of questioning were less predictable. A number of Justices seemed uncomfortable with the idea that California and other states that have passed domestic partnership or civil union protections for gay couples could be “penalized” for extending these protections, while not extending the term marriage. And Justice Kennedy in particular seemed torn, noting that “there’s substance to the point that sociological information is new. We have five years of information [about marriage for same-sex couples] to weigh against 2,000 years of history or more.” In the next breath, however, Justice Kennedy expressed concern over the injury inflicted by Prop 8 to the 40,000 children of same-sex parents in California. These children, said Kennedy, “want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?”
No matter what the Court decides, today was a historic day in the Supreme Court, as tomorrow will be – when the ACLU challenges the constitutionality of the Defense of Marriage Act. In both cases, it’s clear how incredibly far the LGBT movement has come from just 2003, when we were arguing that a criminal sodomy ban should be found unconstitutional.
This is our marriage equality week. Stay tuned for ACLU analysis tomorrow about the DOMA case.

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