Proposition 8 Oral Arguments

Christopher Weyant, The Hill

Christopher Weyant, The Hill

As everyone probably knows the US Supreme Court heard oral arguments today in the case of Hollingsworth v. Perry, more commonly know as the Proposition 8 case. I was able to take some time this afternoon to listen to the oral arguments and review the transcripts to try and give myself an idea as to how the court might rule.

A couple of caveats. First, the ruling won’t come down until June so it is likely that I will rethink and repost on the topic between now and then, but I wanted to get some thoughts out today. Second, I’ve concluded that trying to predict this court is like picking a line in the grocery store, you might have plenty of good reasons for picking the line with two people in it but that won’t stop the person in front of you from needing 4 price checks and a manager approval for her out of state check.

The arguments today basically covered two issues: standing and the merits.

The standing issue is a legal way of saying that for a person to become involved in a case they need to have some stake in that case. For example if your neighbor gets sued then only he can defend himself, you can’t step in even if you feel like you have a stake in his situation. The logic behind this is that if they didn’t place some restrictions on who can become involved in a case things would just be too chaotic. When it comes to federal courts the restrictions are more serious, as you might imagine.

In the case of Hollingsworth, the controversy/debate stems from the fact that the state of California (technically the defendant in the case) did not choose to defend it. Now even though I am an opponent of Proposition 8 I think it was wrong for the state officials not to make an effort to defend the law, but that ship has sailed.

When the state officials chose not to defend the lawsuit the people who originally sponsored the ballot initiative for Proposition 8 moved to defend the law and some question whether they have the right to do so.

In fact there was a case in Arizona involving an English only law where the state chose not to defend the case and the supporters of the ballot proposal stepped in to do so. The US Supreme Court ruled that they did not have the standing to do so and dismissed the case (which had the effect of striking the law).

Certainly this case seems to be similar so why isn’t it clear that the supporters of Proposition 8 don’t have the right to defend it ?

Well when the Supreme Court issued the ruling in the Arizona case one of the points they made was that they were not aware of any Arizona law which allowed the supporters of an initiative to step in to defend it. While there is no California law that says supporters can there have been rulings by the California courts that say they do.

The basic logic is that since the initiative process is designed, in part, to let the people act when government officials won’t it would make no sense to only allow those same government officials to let the law die by not defending it. The California Supreme Court was asked by the lower federal court (the 9th Circuit Court Of Appeals) to issue an advisory opinion on whether or not the supporters of the law had standing and they ruled that they did.

So there is something of a split on the issue of standing.

Based strictly on the comments from the justices today it would seem that they lean strongly to the first view, that there is no standing for the supporters to defend Proposition 8. If they went with this logic then the original ruling would remain in effect, Proposition 8 would be dead but there would be no Supreme Court ruling on the broader issue of whether same sex marriage is a fundamental right.

I have long suspected that this is the direction they would take and if they did so the ruling could be close to unanimous on the subject.

However reading between the lines I think some of the justices want to rule on the merits. After all they could have simply refused to hear the case if they didn’t want to rule on the subject.

I still think striking on lack of standing is more likely but I’d say there is a 1 in 3 chance they hold there was standing and rule on the law itself.

Assuming they do rule on the law itself then there are two directions they can take. The first would be to restrict the ruling to California itself while the other would be to make a broader ruling that would have, if not national implications certainly much broader than California.

Based on the comments from the justices today I do not think they are going to take the bolder approach. Justice Kennedy is the key swing vote o the court and he seemed very reluctant to make such a broad ruling at this point.

On the other hand I think Kennedy is also inclined to find Proposition 8 invalid.

So how will they balance such a conflict ?

Well the entire case so far has been very California centric. The original ruling by the California Supreme Court which struck down the state law defining marriage as between a man and woman only was based on a section of the California Constitution which defined marriage as a fundamental right.

The federal court ruling which found Proposition 8 a violation of equal protection was based upon the idea that once same sex marriage was a fundamental right *in California* then to take it away required very strong reasons to avoid an equal protection violation and since no such reasons were found the law was invalid.

So the court could issue a decision which upholds the ruling striking Proposition 8 but restrict it to California only since the basis for striking the law was based entirely in California. A person in Texas wouldn’t be able to assert any rights under the California Constitution nor could they say they had something taken away by Prop 8.

This I think is the most likely ruling if they find on the merits and I think it would be 6-3 (Kennedy and Roberts joining the 4 court liberals).

As I said this is just a preliminary review. Over the coming weeks I plan to read more deeply into the transcript of the oral arguments and review case law to offer some more updated thoughts. But for now this is where I think things are headed.

Cross posted from my blog (please check it out): The Layman’s Point of View

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Author: PATRICK EDABURN, Assistant Editor

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