The political and legal debate over California’s policy towards same-sex marriage reached the Supreme Court on March 26 when the justices heard arguments in Hollingsworth v. Perry. This is the first of two cases where the Court may address the federal constitutional rules governing same-sex marriage. The Hollingsworth decision in particular may finally provide some California estate planning guidance for same-sex couples, and their families, trapped in legal limbo.
The Hollingsworth case deals with California Proposition 8, a voter initiative adopted in November 2008 amending the state constitution to define a marriage between and a man and a woman as legally valid. This overturned a May 2008 by the California Supreme Court declaring a statutory ban on same-sex marriage unconstitutional. After Proposition 8 passed, opponents filed a federal lawsuit seeking its invalidation under the “due process” and “equal protection” clauses of the Fourteenth Amendment to the United States Constitution.
The San Francisco-based Ninth Circuit U.S. Court of Appeals agreed with Proposition 8 opponents that limiting marriage to opposite-sex couples violated the federal Constitution. However, the appeals court stayed its decision pending a final decision from the Supreme Court, meaning no same-sex marriages may be performed until and unless the justices affirm the Ninth Circuit’s order. The Supreme Court is expected to issue its decision in Hollingsworth sometime in late June.
Protecting the Interests of Children?
At the March 26 oral arguments, attorneys for both sides faced questions from the justices. Charles J. Cooper, the attorney representing Proposition 8 supporters, warned the justices not to interfere with the democratic process. Cooper said the question of “whether the age-old definition of marriage should be changed to include same-sex couples” had to be be decided on a state-by-state basis.
Cooper argued that Proposition 8 supporters had a legitimate interest in protecting “the State’s interest and society’s interest” in traditional marriage, especially its role in supporting procreation. Justice Antonin Scalia, the court’s longest-serving member, added that redefining marriage would inevitably mean permitting same-sex couples to adopt children despite claims by some sociologists that such adoptions may be harmful to children. However, as Justice Ruth Bader Ginsburg noted, California already permits same-sex couples to adopt irrespective of Proposition 8. In that vein, Justice Anthony Kennedy pointed out that “there is an immediate legal injury” to the approximately 40,000 children in California living with same-sex parents. Kennedy said those children “want their parents to have full recognition and [marital] status.”
U.S. Solicitor General Donald Verilli, representing the Obama administration, argued that while the federal Constitution should not require any state to extend the benefits of marriage to same-sex couples, when a state does offer such benefits, it cannot then withhold the status of “marriage.” If the court adopts the administration’s views, therefore, any state that allows for “civil unions” would be constitutionally required to offer same-sex marriage.
Theodore Olson, a former solicitor general himself and the attorney representing Proposition 8 opponents, understandably took a harder line that Verilli in arguing for full constitutional protection of same-sex marriage. Olson declared marriage is “an individual right” that is inseparable from the constitutional protections of “privacy, association, liberty, and the pursuit of happiness.” Any legal ban on same-sex marriage, Olson said, discriminates against homosexuals as a class.
Will the Court Even Decide the Case?
It’s always difficult to judge the Supreme Court’s likely decision from oral arguments. However, it’s notable that the justices questioned all three attorneys about a jurisdictional issue unrelated to the constitutional merits of the case. While Proposition 8 is a California law, state officials declined to appeal the Ninth Circuit’s decision. This left the original supporters of Proposition 8 to file their own appeal. Several justices were skeptical this satisfied the federal Constitution’s requirements for standing. It’s entirely possible the court will ultimately dismiss the Hollingsworth case for lack of standing. This would leave the Ninth Circuit’s decision-which overturned Proposition 8-intact without setting any nationwide precedent.