Huffington Post – Marriage Equality’s Giant Leap Forward

Marriage Equality’s Giant Leap Forward
Posted: 06/26/2013 8:19 pm

Today, my marriage to my wife did not change one iota. Our marriage does not need “protecting” or “defending” by anyone — it is exactly the same today as it was yesterday. Tomorrow, it will remain the same. Contrary to the claims of opponents, the Supreme Court’s landmark rulings on the two cases before it involving the rights of gay people to get married has had and will have no effect whatsoever upon my marriage.

That may sound like a strange place to begin the celebration over the Supreme Court’s rulings in Hollingsworth v. Perry and United States v. Windsor, but it’s a key point if only because it has been used as such an erroneous argument in favor of banning marriage equality. No heterosexual’s right to marry the person of their choice is any different now than it was yesterday — proving the opposition wrong on one of their main arguments (consider the name of the federal law, for proof of this: “Defense Of Marriage Act”). But the whole argument over marriage equality is so personal, I thought I’d start with my own personal take on it: the sun will rise tomorrow, I will be married to the same wonderful woman, and nothing will have changed. Nothing.

However, for a whole lot of gay couples, life will have gotten one whale of a lot better. Today’s Supreme Court rulings are a giant leap forward along the path to fully equal rights. The federal government will now recognize marriages which their states recognize, and the barriers to equal treatment under federal law have disintegrated for good. That is indeed something to celebrate. Which is why I’m going to stop using the term “gay marriage” ever again in my writing. There is no “same-sex” and “opposite-sex” marriage anymore. There is just marriage, period. From now on, the phrase I’ll be using is “marriage equality,” because we’re all now equal under federal law — as we should be under state law, as well.

After the initial euphoria wears off a bit, though, the question will remain where we go from here. Because the battle’s not over yet. The Supreme Court, as I’ve been predicting, did not issue the total Loving v. Virginia victory that gay rights supporters were truly hoping for. Gay marriage was not defined today as a basic and inherent (or “unalienable”) right under federal law. Such a ruling would have overturned laws in almost three-fourths of the states and mandated marriage equality in all 50 states. The Supreme Court obviously didn’t want to move that fast.

This is not to say that they won’t get there eventually. But it’s going to take some time and it’s going to take some work, on both the political and legal fronts. Legally, U.S. v. Windsor struck down Section 3 of the Defense Of Marriage Act — the part which defines in all federal law that “marriage” only means one-man-one-woman, period. But Section 2 of the law wasn’t affected by today’s ruling, and is still federal law. This section reads:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Quite plainly, this section legalizes “separate but equal” treatment of marriage. It is discrimination writ into federal law. It will be challenged in court. The core of this challenge will reference the relevant passage from the United States Constitution. Article IV, Section 1 reads, in full:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Article IV, Section 2 begins with:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Section 1 allows Congress to set the rules for how states treat official records from other states. Congress has done so in Section 2 of DOMA. However, they have done so in order to deny rights, quite obviously. So this is where the constitutional battle will be joined in the next big marriage equality case. This case will be the equivalent of Loving v. Virginia, which declared all state laws banning interracial marriage unconstitutional.

Say (to use a favorite phrase of the marriage equality opponents) Adam and Steve get married in California. Steve then gets a great job in Austin, and they move. Sadly, they decide to divorce. But Texas doesn’t recognize their marriage as being legal, so it refuses to allow them to file divorce papers. Adam and Steve v. Texas will then travel upwards through the state and federal court systems until it reaches the United States Supreme Court.

This is all going to take a number of years. The real question in this (fictional, for now) case is how will the Obama Department of Justice react? Will it refuse to defend Section 2 of DOMA in court at all? What will that eventually mean? The Supreme Court today ruled one section of DOMA unconstitutional even though Obama refused to defend it, so it’ll probably eventually get heard and decided by the high court, but questions of “standing” may allow the court to put off such a sweeping decision until they feel ready to take the final step towards marriage equality. Proposition 8 passed in 2008, remember, so Adam and Steve v. Texas at the Supreme Court may be anywhere from five to ten years away.

That’s a long time to wait, but things won’t be frozen in stone in the meantime. Instead, the focus will shift to the political realm. The good news is that, in politics, the tide has turned in a big way. I confidently predicted earlier this year that the tipping point had been reached on marriage equality, and that we would now be moving forward and not backward. To put this another way, Democrats are about to start confidently winning the “culture wars,” after almost a quarter-century of losing badly on this front.

When the state of Hawai’i indicated it might actually allow gay people to marry, the conservative backlash was ferocious. For two decades, they successfully put anti-marriage-equality measures on the ballot in every state they could. Up until last November, all of these ballot initiatives won. But in 2012, marriage equality won at the ballot box for the first time, in multiple states. Conservatives have been so successful in their own efforts that now they don’t have any states left to pass more initiatives — once you’ve banned something, there is no reason to ban it again, after all. At the high-water mark, three-fourths of the states had anti-marriage-equality laws on the books. But this is the tide which has turned — and we’re never going back. In fact, the number of states allowing full marriage equality is only going to grow.

This isn’t to suggest that it’ll be an easy fight in each state. Every ballot initiative or proposition isn’t going to win the first time around, either. But the entire dynamic has changed. What used to be a very potent “wedge” issue on the Right is now going to become an equally-potent wedge issue for the Left. Think about it: the Left will now pick and choose the states where referenda battles will be fought. The Left will now benefit from having the issue on the ballot. Even if it doesn’t pass, the Left will likely boost their voter turnout (especially among young voters) in states which are voting on the issue.

That is an enormous sea-change, and it’s why I made the “tipping point” prediction earlier in the year. The political calculus is changing — fast. President Obama became the first person to run for president while supporting marriage equality. In his second election, of course — in his first, neither he nor his biggest Democratic contender could bring themselves to support marriage equality (for fear of losing votes, assumably). But Obama didn’t just mark the first time a Democratic presidential candidate fully supported marriage equality, he also marked the last time any Democratic nominee will run against marriage equality. There simply is no turning back, at least in the Democratic Party. Even a few Republican office-holders are now seeing the light.

So while we all wait for the perfect test case to come along which will toss anti-marriage-equality laws on to the same ashcan of history that contains “separate but equal” and the word “miscegenation,” there will be political work to do and victories to achieve. Hollingsworth v. Perry and United States v. Windsor are going to be rallying cries for full marriage equality for a few years to come, but in the end the case that future history students learn about may in fact be whatever Adam and Steve v. Texas case the court has in its near future. But the only way the Supreme Court is ever going to issue a Loving v. Virginia ruling to strike down what remains of DOMA is if the entire country is clearly and irrevocably politically ready for such a momentous decision. And that means more states changing their laws in the meantime.

The good news is that, from this point forward, we’re going to be winning more victories than the opponents of marriage equality. A lot more victories, in fact. And winning them will have the added amusement of turning a wedge issue which has been used against Democrats for decades against Republicans. Call it icing on the wedding cake.

[Program Note: Because marriage equality is such a personal subject, I began writing today by reviewing what I had previously written on the subject over the last seven years. But I didn’t want to clutter up the article above with a bunch of self-referential links. So instead, I’m providing them here in a bunch, if anyone’s interested in reading about my own evolution on the subject. The very first blog post I ever wrote, almost exactly seven years ago, used the term “gay marriage” in its third sentence. Since then (in chronological order), I have revisited the subject of marriage equality many times, most notably when I came out in favor of polygamy, polyandry, polygyny, or polyamory (take your choice) as the next marriage equality issue of our time, quite seriously asking the question: “If you support gay marriage, could you also support polygamy? If so, why? If not, why not?” When the Proposition 8 case first began to move, I mistakenly predicted that it would indeed be a sweeping win for marriage equality, back in 2010. Last year, I began making the observation that Democrats were set up to begin winning the culture wars. By the end of the year, after the two cases had been taken up by the Supreme Court, I was cautioning that the DOMA case was much more likely to get a ruling with a sweeping impact than the Proposition 8 case. In March of this year, I predicted that America had indeed reached a tipping point on marriage equality from which there would be no return. The same week, I wrote of my own personal evolution on gay rights in general, and how as recently as 2005 I was wrong on reading the politics of it being a good issue for Democrats. In the last few months, I wrote again about how the Republican wedge issues were losing their edges, and how I was cautiously optimistic about the rulings the Supreme Court announced today. Not surprisingly, the closer we got to today’s ruling, the better my predictions got as to what was going to happen. I join with all marriage equality supporters across the land in celebrating today’s victories, and optimistically look forward to fighting the good fight in state after state until we achieve true marriage equality across the land for everyone!]

Supreme Court Proposition 8 – Hollingsworth VS Perry Transcripts


– – – – – – – – – – – – – – – – – x


DENNIS HOLLINGSWORTH, ET AL., : Petitioners : No. 12-144
v. :



– – – – – – – – – – – – – – – – – x
Washington, D.C.
Tuesday, March 26, 2013

The above-entitled matter came on for oral

argument before the Supreme Court of the United States

at 10:07 a.m.

APPEARANCES:CHARLES J. COOPER, ESQ., Washington, D.C.; on behalf of


THEODORE B. OLSON, ESQ., Washington, D.C.; on behalf of

DONALD B. VERRILLI, JR., ESQ., Solicitor General,
Department of Justice, Washington, D.C.; for United
States, as amicus curiae, supporting Respondents.


On behalf of the Petitioners 3
On behalf of the Respondents 28
For United States, as amicus curiae, 49
supporting Respondents

On behalf of the Petitioners 63


(10:07 a.m.)
CHIEF JUSTICE ROBERTS: We’ll hear argument
this morning in Case 12-144, Hollingsworth v. Perry.
Mr. Cooper?
MR. COOPER: Thank you, Mr. Chief Justice,
and may it please the Court:

New York’s highest court, in a case similar

 to this one, remarked that until quite recently, it was
 an accepted truth for almost everyone who ever lived in
any society in which marriage existed –

CHIEF JUSTICE ROBERTS: Mr. Cooper, we have
jurisdictional and merits issues here. Maybe it’d be
best if you could begin with the standing issue.

MR. COOPER: I’d be happy to,
Mr. Chief Justice.

Your Honor, the official proponents of
Proposition 8, the initiative, have standing to defend
that measure before this Court as representatives of the
people and the State of California to defend the
validity of a measure that they brought forward.JUSTICE GINSBURG: Have we ever granted
standing to proponents of ballot initiatives?

MR. COOPER: No, Your Honor, the Court has
not done that. But the Court has never had before it a
clear expression from a unanimous State’s high court
that –


JUSTICE GINSBURG: Well, this is — this
is — the concern is certainly, the proponents are
interested in getting it on the ballot and seeing that
all of the proper procedures are followed, but once it’s
passed, they have no proprietary interest in it. It’s
law for them just as it is for everyone else. So how

are they distinguishable from the California citizenry
in general?

MR. COOPER: They’re distinguishable, Your
Honor, because the Constitution of the State of
California and its election code provide, according to
the unanimous interpretation of the California Supreme
Court, that the official proponents, in addition to the
other official responsibilities and authorities that
they have in the initiative process, that those official
proponents also have the authority and the
responsibility to defend the validity of that
initiative -JUSTICE SCALIA: I guess the attorney
general of this State doesn’t have any proprietary
interest either, does he?

MR. COOPER: No, Your Honor, nor did –

JUSTICE SCALIA: But — but he can defend
it, can’t he –

MR. COOPER: — nor did –


JUSTICE SCALIA: — because the law says he

can defend it.

MR. COOPER: That’s right, Your Honor. Nor


did the legislative leaders in the Karcher case have –

JUSTICE KAGAN: Could the State –

MR. COOPER: — any particular enforcement –

JUSTICE KAGAN: — could — could the State

assign to any citizen the rights to defend a judgment of
this kind?

MR. COOPER: Justice Kagan, that would be
a — a very tough question. It’s — it’s by no means
the question before the Court, because — because it
isn’t any citizen, it’s — it is the — it is the
official proponents that have a specific and — and
carefully detailed –

JUSTICE KAGAN: Well, I just — if you would
on the hypothetical: Could a State just assign to


anybody the ability to do this?



MR. COOPER: Your Honor, I think it very

well might. It very well might be able to decide that
any citizen could step forward and represent the

interests of the State and the people in that State –



be — I’m sorry, are you finished?

MR. COOPER: Yes, Your Honor.


 may be true in terms of who they want to represent,
but — but a State can’t authorize anyone to proceed in
Federal court, because that would leave the definition
under Article III of the Federal Constitution as to who
can bring — who has standing to bring claims up to each
State. And I don’t think we’ve ever allowed anything

like that.

MR. COOPER: But, Your Honor, I guess the

point I want to make is that there is no question the
State has standing, the State itself has standing to
represent its own interests in the validity of its own
enactments. And if the State’s public officials decline
to do that, it is within the State’s authority surely, I
would submit, to identify, if not all — any citizen or
at least supporter of the measure, certainly those, that
that very clear and identifiable group of citizens –

JUSTICE KENNEDY: Well, the Chief — the
Chief Justice and Justice Kagan have given a proper
hypothetical to test your theory. But in this case the
proponents, number one, must give their official

address, they must pay money, and they must all act in
unison under California law. So these five proponents
were required at all times to act in unison, so that
distinguishes — and to register and to pay money for
the — so in that sense it’s different from simply

saying any citizen.

MR. COOPER: But of course it is, and I
think the key –

JUSTICE SOTOMAYOR: But can you tell me -that’s
a factual background with respect to their right
to put the ballot initiative on the ballot, but how does
it create an injury to them separate from that of every
other taxpayer to have laws enforced?

MR. COOPER: Your Honor, the — the question
before the Court, I would submit, is not the injury to
the individual proponents; it’s the injury to the State.
The — the legislators in the Karcher case had no
individual particularized injury, and yet this Court
recognized they were proper representatives of the
State’s interests, the State’s injury –

JUSTICE SOTOMAYOR: At least one of the
amici have suggested that it seems counterintuitive to
think that the State is going to delegate to people who
don’t have a fiduciary duty to them, that it’s going to
delegate the responsibility of representing the State to

individuals who have their own views. They proposed the
ballot initiative because it was their individual views,
not necessarily that of the State. So –

MR. COOPER: Well –

proffered the question of the Attorney General. The
Attorney General has no personal interest.


JUSTICE SOTOMAYOR: He has a fiduciary

MR. COOPER: The Attorney General, whether
it’s a fiduciary obligation or not, is in normal
circumstances the representative of the State to defend
the validity of the State’s enactments when they are

challenged in Federal court. But when that officer
doesn’t do so, the State surely has every authority and
I would submit the responsibility to identify
particularly in an initiative — an initiative context.

JUSTICE SOTOMAYOR: Why isn’t the fiduciary
duty requirement before the State can designate a
representative important?

MR. COOPER: Your Honor, I would submit to
you that I don’t think there’s anything in Article III
or in any of this Court’s decisions that suggest that a
representative of a State must be — have a fiduciary

duty, but I would also suggest –

JUSTICE SOTOMAYOR: Well, generally you
don’t need to specify it because generally the people
who get to enforce the legislation of the government are
people who are in government positions elected by the

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MR. COOPER: And Your Honor –

JUSTICE SOTOMAYOR: Here these individuals
are not elected by the people or appointed by the

MR. COOPER: And the California Supreme
Court specifically addressed and rejected that specific
argument. They said it is in the context when the
public officials, the elected officials, the appointed
officials, have declined, have declined to defend a
statute. A statute that, by the way, excuse me, in this
case a constitutional amendment, was brought forward by
the initiative process.

The Court said it is essential to the
integrity, integrity of the initiative process in that
State, which is a precious right of every citizen, the
initiative process in that State, to ensure that when
public officials — and after all, the initiative
process is designed to control those very public
officials, to take issues out of their hands.

And if public officials could effectively
veto an initiative by refusing to appeal it, then the
initiative process would be invalidated.

JUSTICE BREYER: That’s — historically, I
think, 40 States, many States have what was called a
public action. A public action is an action by any
citizen primarily to vindicate the interest in seeing
that the law is enforced. Now, that’s the kind of
action I think that this Court has interpreted the
Constitution of the United States, case in controversy,

to say that it does not lie in the Federal system.

And of course, if that kind of action is the
very kind that does not lie, well, then to say, but they
really feel it’s important that the law be enforced,
they really want to vindicate the process, and these are
people of special interests, we found the five citizens
who most strongly want to vindicate the interest in the
law being enforced and the process for making the law be
enforced, well, that won’t distinguish it from a public

But then you say, but also they are
representing the State. At this point, the Dellinger
brief which takes the other side of it is making a
strong argument, well, they are really no more than a
group of five people who feel really strongly that we

should vindicate this public interest, and have good
reason for thinking it.

So you have read all these arguments that
it’s not really the agent and so forth. What do you
want to say about it?

MR. COOPER: What I want to say, Your Honor,
is according to the California Supreme Court, the
California Constitution says in terms that among the
responsibilities of official proponents, in addition to
the many other responsibilities that they step forward
and they assume in the initiative process, among those
responsibilities and authorities is to defend that
initiative if the public officials which the initiativ


process is designed to control have refused to do it.
It might as well say it in those terms, Your Honor.

CHIEF JUSTICE ROBERTS: Counsel, if you want
to proceed to the merits, you should feel free to do so.

MR. COOPER: Thank you very much, Your

My — my — excuse me. As I was saying, the
accepted truth — excuse me. The accepted truth that -that
the New York high court observed is one that is
changing and changing rapidly in this country as people
throughout the country engage in an earnest debate over
whether the age-old definition of marriage should be

changed to include same-sex couples.

The question before this Court is whether
the Constitution puts a stop to that ongoing democratic
debate and answers this question for all 50 States. And
it does so only if the Respondents are correct that no
rational, thoughtful person of goodwill could possibly
disagree with them in good faith on this agonizingly
difficult issue.

The issues, the constitutional issues that
have been presented to the Court, are not of first
impression here. In Baker v. Nelson, this Court
unanimously dismissed for want of a substantial Federal

JUSTICE GINSBURG: Mr. Cooper, Baker v.

Nelson was 1971. The Supreme Court hadn’t even decided
that gender-based classifications get any kind of
heightened scrutiny.

MR. COOPER: That is –

JUSTICE GINSBURG: And the same-sex intimate
conduct was considered criminal in many States in 1971,
so I don’t think we can extract much in Baker v. Nelson.

MR. COOPER: Well, Your Honor, certainly I
acknowledge the precedential limitations of a summary
dismissal. But Baker v. Nelson also came fairly fast on
the heels of the Loving decision. And, Your Honor, I

simply make the observation that it seems implausible in
the extreme, frankly, for nine justices to have — to
have seen no substantial Federal question if it is true,
as the Respondents maintain, that the traditional
definition of marriage insofar as — insofar as it does
not include same-sex couples, insofar as it is a gender
definition is irrational and can only be explained, can
only be explained, as a result of anti-gay malice and a
bare desire to harm.

JUSTICE KENNEDY: Do you believe this can be
treated as a gender-based classification?

MR. COOPER: Your Honor, I –

JUSTICE KENNEDY: It’s a difficult question
that I’ve been trying to wrestle with it.

MR. COOPER: Yes, Your Honor. And we do

not. We do not think it is properly viewed as a
gender-based classification. Virtually every appellate
court, State and Federal, with one exception, Hawaii, in
a superseded opinion, has agreed that it is not a
gender-based classification, but I guess it is
gender-based in the sense that marriage itself is a
gendered institution, a gendered term, and so in the
same way that fatherhood is gendered more motherhood is
gendered, it’s gendered in that sense.

But we — we agree that to the extent that

the classification impacts, as it clearly does, same-sex
couples, that — that classification can be viewed as
being one of sexual orientation rather than –

JUSTICE SOTOMAYOR: Outside of the -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? Is there any other
rational decision-making that the Government could make?
Denying them a job, not granting them benefits of some
sort, any other decision?

MR. COOPER: Your Honor, I cannot. I do not
have any — anything to offer you in that regard. I
think marriage is –

JUSTICE SOTOMAYOR: All right. If that -if
that is true, then why aren’t they a class? If
they’re a class that makes any other discrimination
improper, irrational, then why aren’t we treating them


as a class for this one thing? Are you saying that the
interest of marriage is so much more compelling than any
other interest as they could have?

MR. COOPER: No, Your Honor, we certainly
are not. We — we are saying the interest in marriage
and the — and the State ‘s interest and society’s
interest in what we have framed as responsible pro –

procreation is — is vital, but at bottom, with respect
to those interests, our submission is that same-sex
couples and opposite-sex couples are simply not
similarly situated.

But to come back to your precise question, I
think, Justice Sotomayor, you’re probing into whether or
not sexual orientation ought to be viewed as a
quasi-suspect or suspect class, and our position is that
it does not qualify under this Court’s standard and -and
traditional tests for identifying suspectedness.
The — the class itself is — is quite amorphous. It
defies consistent definition as — as the Plaintiffs’
own experts were — were quite vivid on. It — it does
not — it — it does not qualify as an accident of
birth, immutability in that — in that sense.

Again, the Plaintiffs –

JUSTICE SOTOMAYOR: So you — so what — I
don’t quite understand it. If you’re not dealing with
this as a class question, then why would you say that
the Government is not free to discriminate against them?


MR. COOPER: Well, Your Honor, I would think
that — that — I think it’s a — it’s a very different
question whether or not the Government can proceed
arbitrarily and irrationally with respect to any group
of people, regardless of whether or not they qualify

under this Court’s traditional test for suspectedness.
And — and the hypothetical I understood you to be
offering, I would submit would create — it would -unless
there’s something that — that is not occurring
to me immediately, an arbitrary and capricious
distinction among similarly situated individuals,
that — that is not what we think is at the — at the
root of the traditional definition of marriage.

JUSTICE KAGAN: Mr. Cooper, could I just
understand your argument. In reading the briefs, it
seems as though your principal argument is that same-sex
and opposite — opposite-sex couples are not similarly
situated because opposite-sex couples can procreate,


same-sex couples cannot, and the State’s principal
interest in marriage is in regulating procreation. Is
that basically correct?

MR. COOPER: I — Your Honor, that’s the
essential thrust of our — our position, yes.

JUSTICE KAGAN: Is — is there — so you
have sort of a reason for not including same-sex
couples. Is there any reason that you have for
excluding them? In other words, you’re saying, well, if
we allow same-sex couples to marry, it doesn’t serve the
State’s interest. But do you go further and say that it
harms any State interest?

MR. COOPER: Your Honor, we — we go further

in — in the sense that it is reasonable to be very
concerned that redefining marriage to — as a genderless
institution could well lead over time to harms to that
institution and to the interests that society has
always — has — has always used that institution to
address. But, Your Honor, I –


JUSTICE KAGAN: Well, could you explain that
a little bit to me, just because I did not pick this up
in your briefs.

What harm you see happening and when and how
and — what — what harm to the institution of marriage
or to opposite-sex couples, how does this cause and
effect work?

MR. COOPER: Once again, I — I would
reiterate that we don’t believe that’s the correct legal
question before the Court, and that the correct question
is whether or not redefining marriage to include
same-sex couples would advance the interests of marriage
as a –

JUSTICE KENNEDY: Well, then are — are you
conceding the point that there is no harm or denigration
to traditional opposite-sex marriage couples? So you’re
conceding that.

MR. COOPER: No, Your Honor, no. I’m not

conceding that.

JUSTICE KENNEDY: Well, but, then it — then
it seems to me that you should have to address Justice
Kagan’s question.

MR. COOPER: Thank you, Justice Kennedy.
have two points to make on them.
The first one is this: The Plaintiffs’
expert acknowledged that redefining marriage will have
real-world consequences, and that it is impossible for
anyone to foresee the future accurately enough to know
exactly what those real-world consequences would be.
And among those real-world consequences, Your Honor, we
would suggest are adverse consequences.

But consider the California voter, in 2008,
in the ballot booth, with the question before her
whether or not this age-old bedrock social institution
should be fundamentally redefined, and knowing that
there’s no way that she or anyone else could possibly
know what the long-term implications of — of profound
redefinition of a bedrock social institution would be.
That is reason enough, Your Honor, that would hardly be
irrational for that voter to say, I believe that this
experiment, which is now only fairly four years old,
even in Massachusetts, the oldest State that is
conducting it, to say, I think it better for California

to hit the pause button and await additional information
from the jurisdictions where this experiment is still

JUSTICE SCALIA: Mr. Cooper, let me — let
me give you one — one concrete thing. I don’t know why
you don’t mention some concrete things. If you redefine
marriage to include same-sex couples, you must — you
must permit adoption by same-sex couples, and there’s -there’s
considerable disagreement among — among

sociologists as to what the consequences of raising a
child in a — in a single-sex family, whether that is
harmful to the child or not. Some States do not — do
not permit adoption by same-sex couples for that reason.

JUSTICE GINSBURG: California — no,
California does.

JUSTICE SCALIA: I don’t think we know the
answer to that. Do you know the answer to that, whether
it — whether it harms or helps the child?

MR. COOPER: No, Your Honor. And there’s -there’s

JUSTICE SCALIA: But that’s a possible
deleterious effect, isn’t it?

MR. COOPER: Your Honor, it — it is
certainly among the –

JUSTICE GINSBURG: It wouldn’t be in

California, Mr. Cooper, because that’s not an issue, is
it? In California, you can have same-sex couples
adopting a child.

MR. COOPER: That’s right, Your Honor. That
is true. And — but — but, Your Honor, here’s -here’s
the point –

JUSTICE SCALIA: I — it’s true, but
irrelevant. They’re arguing for a nationwide rule which
applies to States other than California, that every
State must allow marriage by same-sex couples. And so
even though States that believe it is harmful — and I
take no position on whether it’s harmful or not, but it
is certainly true that — that there’s no scientific
answer to that question at this

point in time.

MR. COOPER: And — and that, Your Honor, is
the point I am trying to make, and it is the
Respondents’ responsibility to prove, under rational
basis review, not only that — that there clearly will
be no harm, but that it’s beyond debate that there will
be no harm.

JUSTICE GINSBURG: Mr. Cooper, you are
defending — you are opposing a judgment that applies to
California only, not to all of the States.

MR. COOPER: That’s true, Your Honor. And
if there were a way to cabin the arguments that are

being presented to you to California, then the concerns
about redefining marriage in California could be
confined to California, but they cannot, Your Honor.

JUSTICE KENNEDY: I — I think there’s -there’s

substantial — that there’s substance to the
point that sociological information is new. We have
five years of information to weigh against 2,000 years
of history or more.

On the other hand, there is an immediate
legal injury or legal — what could be a legal injury,
and that’s the voice of these children. There are some
40,000 children in California, according to the Red
Brief, that live with same-sex parents, and they want
their parents to have full recognition and full status.
The voice of those children is important in this case,
don’t you think?

MR. COOPER: Your Honor, I certainly would
not dispute the importance of that consideration. That
consideration especially in the political process, where
this issue is being debated and will continue to be

debated, certainly, in California. It’s being debated
elsewhere. But on that — on that specific question,
Your Honor, there simply is no data.

In fact, their expert agreed there is no
data, no study, even, that would examine whether or not

there is any incremental beneficial effect from marriage
over and above the domestic partnership laws that were

enacted by the State of California to recognize,
support, and honor same-sex relationships and their
families. There is simply no data at all that would
permit one to draw — draw that conclusion.

I would recall, Justice Kennedy, the point
made in Romer, that under a rational basis of review,
the provision will be sustained even if it operates to
the disadvantage of a group, if it is — if it otherwise
advances rationally a legitimate State interest.

CHIEF JUSTICE ROBERTS: Mr. Cooper, we will
afford you more time. You shouldn’t worry about losing
your rebuttal time, but please continue on.


JUSTICE BREYER: As long as you are on that,
then I would like to ask you this: Assume you could
distinguish California, suppose we accept your argument
or accept Justice Scalia’s version of your argument and
that distinguishes California. Now, let’s look at
California. What precisely is the way in which allowing
gay couples to marry would interfere with the vision of

marriage as procreation of children that allowing
sterile couples of different sexes to marry would not?

I mean, there are lots of people who get

married who can’t have children. To take a State that
does allow adoption and say — there, what is the

justification for saying no gay marriage? Certainly not
the one you said, is it?

MR. COOPER: You’re –

JUSTICE BREYER: Am I not clear?

Look, you said that the problem is marriage;
that it is an institution that furthers procreation.

MR. COOPER: Yes, Your Honor.

JUSTICE BREYER: And the reason there was
adoption, but that doesn’t apply to California. So
imagine I wall off California and I’m looking just
there, where you say that doesn’t apply. Now, what
happens to your argument about the institution of
marriage as a tool towards procreation? Given the fact
that, in California, too, couples that aren’t gay but
can’t have children get married all the time.

MR. COOPER: Yes, Your Honor. The concern
is that redefining marriage as a genderless institution

will sever its abiding connection to its historic
traditional procreative purposes, and it will refocus,
refocus the purpose of marriage and the definition of
marriage away from the raising of children and to the
emotional needs and desires of adults, of adult couples.

Suppose, in turn –

JUSTICE KAGAN: Well, suppose a State said,
Mr. Cooper, suppose a State said that, Because we think
that the focus of marriage really should be on
procreation, we are not going to give marriage licenses
anymore to any couple where both people are over the age
of 55. Would that be constitutional?

MR. COOPER: No, Your Honor, it would not be

JUSTICE KAGAN: Because that’s the same
State interest, I would think, you know. If you are
over the age of 55, you don’t help us serve the
Government’s interest in regulating procreation through
marriage. So why is that different?

MR. COOPER: Your Honor, even with respect

to couples over the age of 55, it is very rare that both
couples — both parties to the couple are infertile, and
the traditional –


JUSTICE KAGAN: No, really, because if the
couple — I can just assure you, if both the woman and
the man are over the age of 55, there are not a lot of
children coming out of that marriage.


MR. COOPER: Your Honor, society’s -society’s
interest in responsible procreation isn’t just

with respect to the procreative capacities of the couple
itself. The marital norm, which imposes the obligations
of fidelity and monogamy, Your Honor, advances the
interests in responsible procreation by making it more

likely that neither party, including the fertile party
to that –

JUSTICE KAGAN: Actually, I’m not even –

JUSTICE SCALIA: I suppose we could have a
questionnaire at the marriage desk when people come in
to get the marriage — you know, Are you fertile or are
you not fertile?


JUSTICE SCALIA: I suspect this Court would
hold that to be an unconstitutional invasion of privacy,
don’t you think?

JUSTICE KAGAN: Well, I just asked about
age. I didn’t ask about anything else. That’s not -we
ask about people’s age all the time.

MR. COOPER: Your Honor, and even asking
about age, you would have to ask if both parties are
infertile. Again –

JUSTICE SCALIA: Strom Thurmond was — was
not the chairman of the Senate committee when Justice
Kagan was confirmed.


MR. COOPER: Very few men — very few men
outlive their own fertility. So I just –

JUSTICE KAGAN: A couple where both people
are over the age of 55 –


JUSTICE KAGAN: A couple where both people
are over the age of 55.

MR. COOPER: And Your Honor, again, the

marital norm which imposes upon that couple the
obligation of fidelity –

JUSTICE SOTOMAYOR: I’m sorry, where is
this –

CHIEF JUSTICE ROBERTS: I’m sorry, maybe you
can finish your answer to Justice Kagan.


MR. COOPER: It’s designed, Your Honor, to
make it less likely that either party to that — to that
marriage will engage in irresponsible procreative
conduct outside of that marriage. Outside of that
marriage. That’s the marital — that’s the marital
norm. Society has an interest in seeing a 55-year-old
couple that is — just as it has an interest of seeing
any heterosexual couple that intends to engage in a
prolonged period of cohabitation to reserve that until
they have made a marital commitment, a marital

commitment. So that, should that union produce any
offspring, it would be more likely that that child or
children will be raised by the mother and father who
brought them into the world.

JUSTICE GINSBURG: Mr. Cooper, we said that
somebody who is locked up in prison and who is not going

to get out has a right to marry, has a fundamental right
to marry, no possibility of procreation.

MR. COOPER: Your Honor is referring, I’m
sure, to the Turner case, and –


MR. COOPER: — I think that, with due
respect, Justice Ginsburg, way over-reads — way
over-reads Turner against Safley. That was a ca

se in

which the prison at issue — and it was decided in the
specific context of a particular prison where there were
both female and male inmates, many of them minimum
security inmates. It was dealing with a regulation,
Your Honor, that had previously permitted marriage in
the case of pregnancy and childbirth.

The Court — the Court here emphasized that,
among the incidents of marriage that are not destroyed
by that — at least that prison context, was the
expectation of eventual consummation of the marriage and
legitimation of — of the children. So that –

Mr. Cooper.

MR. COOPER: Thank you, Mr. Chief Justice.


MR. OLSON: Thank you, Mr. Chief Justice,
and may it please the Court:

I know that you will want me to spend a
moment or two addressing the standing question, but
before I do that, I thought that it would be important
for this Court to have Proposition 8 put in context,
what it does. It walls-off gays and lesbians from
marriage, the most important relation in life, according
to this Court, thus stigmatizing a class of Californians
based upon their status and labeling their most
cherished relationships as second-rate, different,
unequal, and not okay.

your friend before he could get into the merits.

MR. OLSON: I was trying to avoid that, Your





only fair to treat you the same. Perhaps you could
address your jurisdictional argument?

MR. OLSON: Yes. I think that our
jurisdictional argument is, as we set forth in the
brief, California cannot create Article III standing by
designating whoever it wants to defend the State of
California in connection with the ballot.

JUSTICE KENNEDY: But this is not whoever it
wants. These are five proponents of — of the measure,
and if we were to accept your argument, it would give
the State a one-way ratchet. The State could go in and
make a defense, maybe a half-hearted defense of the
statute, and — and then when the statute is held
invalid, simply — simply leave. On the other hand,
if — if the State loses, the State can appeal.

So this is a one-way ratchet as it favors
the State, and allows governors and other constitutional
officers in different States to thwart the initiative

MR. OLSON: That’s the — that’s the way the
California Supreme Court saw it with respect to

California law. The governor and the Attorney General
of California are elected to act in the best interests
of the State of California. They made a professional
judgment given their obli

gations as officers of the

State of California.

The California Supreme Court has said that
proponents — and by the way, only four of the five are
here. Dr. Tam withdrew from the case because of some -many
things he said during the election campaign.

JUSTICE ALITO: Well, Mr. Olson, is it your
position that the only people who could defend a ballot,
a law that’s adopted in California through the ballot
initiative are the Attorney General and the governor, so
that if the Attorney General and the governor don’t like
the ballot initiative, it will go undefended? Is that
your position?

MR. OLSON: I don’t — I don’t think it’s
quite that limited. I think one of your colleagues
suggested that there could be an officer appointed.
There could be an appointee of the State of California

who had responsibility, fiduciary responsibility to the
State of California and the citizens of California, to
represent the State of California along –

JUSTICE SCALIA: Who — who would appoint
him? The same governor that didn’t want to defend the

MR. OLSON: Well, that happens all the time.
As you recall in the case of — well, let’s not spend
too much time on independent counsel provisions, but –


MR. OLSON: The governor — the government

of the State of California frequently appoints an
attorney where there’s a perceived conflict of
interest –


MR. OLSON: — and that person would have a
responsibility for the State and might have
responsibility for the attorneys’ fees.

might be people out there with their own personal
standing, someone who performs marriages and would like

that to remain open to everyone but would prefer not to
perform same-sex marriages, or other people. We seem to
be addressing the case as if the only options are the
proponents here or the State. I’m not sure there aren’t
other people out there with individual personalized
injury that would satisfy Article III.

MR. OLSON: There might well be in — in a
different case. I don’t know about this case. If there
was, for example, this was an initiative measure that
allocated certain resources of the State of California
and the people — maybe it was a binary system of people
got resources and other people didn’t get resources,
there could be standing. Someone would show actual


The point, I guess, at the bottom of this is
the Supreme Court, this Court, decided in Raines v. Byrd
that Congress couldn’t specify members of Congress in
that context even where the measure depleted or
diminished powers of Congress –

JUSTICE SOTOMAYOR: Mr. Olson, I think the
bottom line –

JUSTICE ALITO: The States are not bound by
the same separation of powers doctrine that underlies
the Federal Constitution. You couldn’t have a Federal
initiative, for example. They’re free of all that.

So start from the proposition that a State
has standing to defend the constitutionality of a State
law un- — beyond dispute. The question then is, who
represents the State?

Now, in a State that has initiative, the
whole process would be defeated if the only people who
could defend the statute are the elected public
officials. The whole point — you know this better than
I do, because you’re from California — the whole point
of the initiative process was to allow the people to
circumvent public officials about whom they were

So if you reject that proposition, what is

left is the proposition that the State — State law can
choose some other person, some other group to defend the
constitutionality of a State law. And the California
Supreme Court has told us that the Plaintiffs in this

case are precisely those people.

So how do you get around that?

MR. OLSON: The only — that’s exactly


the California Supreme Court thought. The California
Supreme Court thought that it could decide that the
proponents, whoever they were, and this could be
25 years after the election; it could be one of the
proponents, it could be four of the proponents; they
could have an interest other than the State because they
have no fiduciary responsibility to the State; they may
be incurring attorneys’ fees on behalf of the State or
on behalf of themselves, but they haven’t been
appointed; they have no official responsibility to the

And my only argument, and I know it’s a
close one, because California thinks that this is the
system. The California Supreme Court thought that this
was a system that would be a default system. I’m
suggesting from your decisions with respect to Article

III that that takes more than that under –

JUSTICE SOTOMAYOR: Mr. Olson, I think that

you’re not answering the fundamental fear. And so -and
— and the amici brief that sets forth this test of
fiduciary duty doesn’t quite either.

The assumption is that there are not
executive officials who want to defend the law. They
don’t like it. No one’s going to do that. So how do
you get the law defended in that situation?

MR. OLSON: I don’t have an answer to that
question unless there’s an appointment process either
built into the system where it’s an officer of
California or –


OR: So why — why isn’t this

viewed as an appointment process, that the in — the
ballot initiators have now become that body?

MR. OLSON: And that’s the argument –

JUSTICE SOTOMAYOR: Is that your argument –

MR. OLSON: That’s our — that’s the
argument our opponents make. But it — but it must be
said that it happens all of the time, that Federal
officials and State officials decide not to enforce a
statute, to enforce a statute in certain ways. We don’t
then come in and decide that there’s someone else ought
to be in court for every particular –

JUSTICE BREYER: What the brief says is, of
course, you can appoint people. It’s not just that you

appoint them, it’s that the State’s interest, when it
defends a law, is the interest in executing the law of
the State. So all you have to do is give a person that
interest. But when a person has the interest of
defending this law, as opposed to defending the law of
the State of California, there can be all kinds of
conflicts, all kinds of situations.

That’s what I got out of the brief. So give

the person that interest. And that, they say, is what’s
missing here. And you’ll say — I mean, that’s -that’s
here, and you say it’s missing here.

MR. OLSON: Yeah, I don’t –

JUSTICE BREYER: Why is it missing here?

MR. OLSON: It is — what is missing here,
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. And as I said, you’d be — could be incurring
enormous legal fees on behalf of the State when the
State hasn’t decided to go that route. I think –

CHIEF JUSTICE ROBERTS: You should feel free
to move on to the merits.

MR. OLSON: Thank you, Your Honor. As I

pointed out at the — at the outset, this is a measure
that walls off the institution of marriage, which is not
society’s right. It’s an individual right that this

Court again and again and again has said the right to
get married, the right to have the relationship of
marriage is a personal right. It’s a part of the right
of privacy, association, liberty, and the pursuit of

In the cases in which you’ve described the
right to get married under the Constitution, you’ve
described it as marriage, procreation, family, other
things like that. So the procreation aspect, the
responsibility or ability or interest in procreation is
not a part of the right to get married. Now, that –

counsel, that it makes — I’m not sure that it’s right
to view this as excluding a particular group. When the
institution of marriage develop

ed 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.

It is — yes, you can say that it serves

some of the other interests where it makes sense to
include them, but not all the interests. And it seems

to me, your friend argues on the other side, if you have
an institution that pursues additional interests, you
don’t have to include everybody just because some other
aspects of it can be applied to them.

MR. OLSON: Well, there’s a couple of
answers to that, it seems to me, Mr. Chief Justice. In
this case, that decision to exclude gays and lesbians
was made by the State of California.

because Proposition 8 came 140 days after the California
Supreme Court issued its decision.

MR. OLSON: That’s right.

CHIEF JUSTICE ROBERTS: And don’t you think
it’s more reasonable to view it as a change by the
California Supreme Court of this institution that’s been
around since time immemorial?

MR. OLSON: The California Supreme Court,
like this Supreme Court, decides what the law is. 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 –

JUSTICE SCALIA: You — you’ve led me right

into a question I was going to ask. The California
Supreme Court decides what the law is. That’s what we

decide, right? We don’t prescribe law for the future.
We — we decide what the law is. I’m curious, when -when
did — when did it become unconstitutional to
exclude homosexual couples from marriage? 1791? 1868,
when the Fourteenth Amendment was adopted?

Sometimes — some time after Baker, where we
said it didn’t even raise a substantial Federal
question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the
form of a rhetorical question? When did it become
unconstitutional to prohibit interracial marriages?
When did it become unconstitutional to assign children
to separate schools.

JUSTICE SCALIA: It’s an easy question, I
think, for that one. At — at the time that the Equal

Protection Clause was adopted. That’s absolutely true.

But don’t give me a question to my question.


JUSTICE SCALIA: When do you think it became
unconstitutional? Has it always been unconstitutional?

MR. OLSON: When the — when the California
Supreme Court faced the decision, which it had never
faced before, is — does excluding gay and lesbian
citizens, who are a class based upon their status as
homosexuals — is it — is it constitutional –

JUSTICE SCALIA: That — that’s not when it
became unconstitutional. That’s when they acte

d in an
unconstitutional matter — in an unconstitutional
matter. When did it become unconstitutional to prohibit
gays from marrying?

MR. OLSON: That — they did not assign a
date to it, Justice Scalia, as you know. What the court
decided was the case that came before it –

JUSTICE SCALIA: I’m not talking about the

California Supreme Court. I’m talking about your
argument. You say it is now unconstitutional.


JUSTICE SCALIA: Was it always

MR. OLSON: It was constitutional when we -as
a culture determined that sexual orientation is a
characteristic of individuals that they cannot control,
and that that –

JUSTICE SCALIA: I see. When did that
happen? When did that happen?

MR. OLSON: There’s no specific date in
time. This is an evolutionary cycle.

JUSTICE SCALIA: Well, how am I supposed to
know how to decide a case, then –

MR. OLSON: Because the case that’s before

you –

JUSTICE SCALIA: — if you can’t give me a
date when the Constitution changes?

MR. OLSON: — in — the case that’s before
you today, California decided — the citizens ofCalifornia decided, after the California Supreme Court decided that individuals had a right to get married
irrespective of their sexual orientation in California,
and then the Californians decided in Proposition 8, wait
a minute, we don’t want those people to be able to get

case — your case would be different if Proposition 8
was enacted into law prior to the California Supreme
Court decision?

MR. OLSON: I would make — I would make
the — also would make the — that distinguishes it in
one respect. But also — also — I would also make the
argument, Mr. Chief Justice, that we are — this -marriage
is a fundamental right and we are making a
classification based upon a status of individuals, which
this Court has repeatedly decided that gays and lesbians
are defined by their status. There is no question about

JUSTICE SCALIA: So it would be

unconstitutional even in States that did not allow
civil unions?

MR. OLSON: We do, we submit that. You

could write a narrower decision.

JUSTICE SCALIA: Okay. So I want to know
how long it has been unconstitutional in those –

MR. OLSON: I don’t — when — it seems to
me, Justice Scalia, that –

JUSTICE SCALIA: It seems to me you ought to
be able to tell me when. Otherwise, I don’t know how to
decide the case.

MR. OLSON: I — I submit you’ve never
required that before. When you decided that — that
individuals — after having decided that separate but
equal schools were permissible, a decision by this
Court, when you decided that that was unconstitutional,
when did that become unconstitutional?

JUSTICE SCALIA: 50 years ago, it was okay?

MR. OLSON: I — I can’t answer that
question, and I don’t think this Court has ever phrased
the question in that way.

JUSTICE SCALIA: I can’t either. That’s the
problem. That’s exactly the problem.

MR. OLSON: But what I have before you now,
the case that’s before you today, is whether or not

California can take a class of individuals based upon
their characteristics, their distinguishing
characteristics, remove from them the right of privacy,
liberty, association, spirituality, and identity that -that
marriage gives them.

It — it is — it is not an answer to say
procreation or anything of that nature, because
procreation is not a part of the right to get married.

JUSTICE KENNEDY: That’s really — that’s a

broad argument that you — that’s in this case if the
Court wants to reach it. The rationale of the Ninth
Circuit was much more narrow. It basically said that
California, which has been more generous, more open to
protecting same-sex couples than almost any State in the
Union, just didn’t go far enough, and it’s being
penalized for not going far enough.

That’s a very odd rationale on which to
sustain this opinion.

MR. OLSON: This Court has always looked
into the context. In, for example, the New Orleans case
involving the gambling casinos and advertising, you look
at the context of what was permitted, what was not
permitted, and does that rationalization for prohibiting
in that case the advertising, in this case prohibiting
the relationship of marriage, does it make any sense in

the context of what exists?

JUSTICE ALITO: Seriously, Mr. Olson,

if California provides all the substantive benefits of
marriage to same-sex domestic partnerships, are you
seriously arguing that if California — if the State -if
the case before us now were from a State that doesn’t
provide any of those benefits to same-sex couples, this
case would come out differently?

MR. OLSON: No, I don’t think it would come
out differently, because of the fundamental arguments
we’re making with respect to class-based distinctions
with respect to a fundamental right. However, to the
extent that my opponent, in the context of California,
talks about child-rearing or adoptions or — or of
rights of people to live together and that sort of
thing, those arguments can’t be made on behalf of
California, because California’s already made a decision
that gay and lesbian individuals are perfectly suitable
as parents, they’re perfectly suitable to adopt, they’re
raising 37,000 children in California, and the expert on
the other side specifically said and testified that they
would be better off when their parents were allowed to
get married.

JUSTICE ALITO: I don’t think you can have
it both ways. Either this case is the same, this would

be the same if this were Utah or Oklahoma, or it’s
different because it’s California and California has
provided all these –

MR. OLSON: I — I think that it’s not that
we’re arguing that those are inconsistent. If the
fundamental thing is that denying gays and lesbians the
right of marriage, which is fundamental under your
decisions, that is unconstitutional, if it is — if the
State comes forth with certain arguments — Utah might
come forth with certain justifications. California
might come forth with others. But the fact is that
California can’t make the arguments about adoption or
child-rearing or people living together, because they
have already made policy decisions. So that doesn’t
make them inconsistent.

about — it’s just about the label in this case.

MR. OLSON: The label is –

have every other right, it’s just about the label.

MR. OLSON: The label “marriage” means
something. Even our opponents –

tell — if you tell a child that somebody has to be
their friend, I suppose you can force the child to say,

this is my friend, but it changes the definition of what
it means to be a friend.

And that’s it seems to me what the — what
supporters of Proposition 8 are saying here. You’re -all
you’re interested in is the label and you insist on
changing the definition of the label.

MR. OLSON: It is like you were to say you
can vote, you can travel, but you may not be a citizen.
There are certain labels in this country that are very,
very critical. You could have said in the Loving case,
what — you can’t get married, but you can have an
interracial union. Everyone would know that that was
wrong, that the — marriage has a status, recognition,
support, and you — if you read the test, you know –

CHIEF JUSTICE ROBERTS: How do we know -how
do we know that that’s the reason, or a necessary
part of the reason, that we’ve recognized marriage as a
fundamental right? That’s — you’ve emphasized that and
you’ve said, well, it’s because of the emotional
commitment. Maybe it is the procreative aspect that
makes it a fundamental right.

MR. OLSON: But you have said that marriage
is a fundamental right with respect to procreation and
at the same level getting married, privacy — you said
that in the Zablocki case, you said that in the Lawrence

case, and you said it in other cases, the Skinner case,
for example.

Marriage is put on a pro- — equal footing
with procreational aspects. And your — this Court is
the one that has said over and over again that marriage
means something to the individual: The privacy,
intimacy, and that it is a matter of status and
recognition in this –

JUSTICE SOTOMAYOR: Mr. Olson, the bottom
line that you’re being asked — and — and it is one
that I’m interested in the answer: If you say that
marriage is a fundamental right, what State restrictions
could ever exist? Meaning, what State restrictions with
respect to the number of people, with respect to — that
could get married — the incest laws, the mother and
child, assuming that they are the age — I can — I can
accept that the State has probably an overbearing
interest on — on protecting a child until they’re of
age to marry, but what’s left?

MR. OLSON: Well, you’ve said — you’ve said
in the cases decided by this Court that the polygamy
issue, multiple marriages raises questions about
exploitation, abuse, patriarchy, issues with respect to
taxes, inheritance, child custody, it is an entirely
different thing. And if you — if a State prohibits

polygamy, it’s prohibiting conduct.

If it prohibits gay and lesbian citizens
from getting married, it is prohibiting their exercise
of a right based upon their status. It’s selecting them
as a class, as you described in the Romer case and as
you described in the Lawrence case and in other cases,
you’re picking out a group of individuals to deny them
the freedom that you’ve said is fundamental, important
and vital in this society, and it has status and
stature, as you pointed out in the VMI case. There’s
a — there’s a different –

JUSTICE SOTOMAYOR: Is there any way to
decide this case in a principled manner that is limited
to California only?

MR. OLSON: Yes, the Ninth Circuit did that.
You can decide the standing case that limits it to the
decision of the district court here. You could decide
it as the Ninth Circuit did –

JUSTICE KENNEDY: The problem — the problem

with the case is that you’re really asking, particularly
because of the sociological evidence you cite, for us to
go into uncharted waters, and you can play with that
metaphor, there’s a wonderful destination, it is a
cliff. Whatever that was.


JUSTICE KENNEDY: But you’re — you’re doing
so in a — in a case where the opinion is very narrow.
Basically that once the State goes halfway, it has to go
all the way or 70 percent of the way, and you’re doing
so in a case where there’s a substantial question on -on
standing. I just wonder if — if the case was
properly granted.

MR. OLSON: Oh, the case was certainly
properly granted, Your Honor. I mean, there was a full
trial of all of these issues. There was a 12-day trial,
the judge insisted on evidence on all of these
questions. This — this is a –

JUSTICE KENNEDY: But that’s not the issue
the Ninth Circuit decided.

MR. OLSON: The issue — yes, the Ninth

Circuit looked at it and decided because of your
decision on the Romer case, this Court’s decision on the
Romer case, that it could be decided on the narrower
issue, but it certainly was an appropriate case to
grant. And those issues that I’ve been describing are
certainly fundamental to the case. And — and I don’t
want to abuse the Court’s indulgence, that what I — you
suggested that this is uncharted waters. It was
uncharted waters when this Court, in 1967, in the Loving
decision said that interracial — prohibitions

on interracial marriages, which still existed in 16
States, were unconstitutional.

JUSTICE KENNEDY: It was hundreds of years

old in the common law countries. This was new to the
United States.

MR. OLSON: And — and what we have here –

JUSTICE KENNEDY: So — so that’s not

MR. OLSON: I — I respectfully submit that
we’ve under — we’ve learned to understand more about
sexual orientation and what it means to individuals.
guess the — the language that Justice Ginsburg used at
the closing of the VMI case is an important thing, it
resonates with me, “A prime part of the history of our
Constitution is the story of the extension of
constitutional rights to people once ignored or

CHIEF JUSTICE ROBERTS: Thank you, counsel.
General Verrilli?
GENERAL VERRILLI: Mr. Chief Justice, and
may it please the Court:
Proposition 8 denies gay and lesbian persons

the equal protection of the laws –

you’re going to get away with not starting with the
jurisdictional question, do you?


GENERAL VERRILLI: As an amicus, I thought I
might actually, Your Honor. And — and, of course, we
didn’t take a position on standing. We didn’t — we
didn’t brief it, we don’t have a formal position on
standing. But I will offer this observation based on
the discussion today and the briefing.

We do think that while it’s certainly not
free of doubt, that the better argument is that there is
not Article III standing here because — I don’t want to
go beyond just summarizing our position, but — because
we don’t have a formal position.

But we do think that with respect to
standing, that at this point with the initiative process
over, that Petitioners really have what is more in the
nature of a generalized grievance and because they’re
not an agent of the State of California or don’t have
any other official tie to the State that would — would
result in any official control of their litigation, that
the better conclusion is that there’s not Article I


standing here.

JUSTICE ALITO: Well, tomorrow you’re going
to be making a standing argument that some parties think
is rather tenuous, but today, you’re — you’re very
strong for Article III standing?

GENERAL VERRILLI: Well, we said this was
a — we said this was a close question, and — and our
interests are, Justice Alito, in tomorrow’s issues where
we have briefed the matter thoroughly and will be
prepared to discuss it with the Court tomorrow.

With respect to the merits, two fundamental
points lead to the conclusion that there’s an equal
protection violation here. First, every warning flag
that warrants exacting scrutiny is present in this case.
And Petitioners’ defense of Proposition 8 requires the
Court to ignore those warning flags and instead apply
highly deferential Lee Optical rational basis review as

though Proposition 8 were on a par with the law of
treating opticians less favorably than optometrists,
when it really is the polar opposite of such a law.

JUSTICE GINSBURG: General Verrilli, I could
understand your argument if you were talking about the
entire United States, but you — your brief says it’s
only eight or nine States, the States that permit civil
unions, and that’s — brings up a question that was
asked before. So a State that has made considerable

progress has to go all the way, but at least the
Government’s position is, if it has done — the State
has done absolutely nothing at all, then it’s — it can
do — do as it will.

GENERAL VERRILLI: That gets to my second

point, Your Honor, which is that I do think the problem
here with the arguments that Petitioners are advancing
is that California’s own laws do cut the legs out from
under all of the justifications that Petitioners have
offered in defense of Proposition 8, and I understand
Your Honor’s point and the point that Justice Kennedy
raised earlier, but I do think this Court’s equal
protection jurisprudence requires the Court to evaluate
the interests that the State puts forward, not in a
vacuum, but in the context of the actual substance of
California law.

And here, with respect to California law,
gay and lesbian couples do have the legal rights and
benefits of marriage, full equality and adoption, full
access to assistive reproduction, and therefore, the
argument about the State’s interests that — that
Petitioners advance have to be tested against that
reality, and — and they just don’t measure up. None of
the –

JUSTICE BREYER: Well, the argument –

JUSTICE ALITO: None of the –


JUSTICE BREYER: What is the one — look, a
State that does nothing for gay couples hurts them much
more than a State that does something. And, of course,
it’s true that it does hurt their argument that they do
quite a lot, but which are their good arguments, in your
opinion? I mean, take a State that really does nothing

They have no benefits, no nothing, no
nothing. Okay? And moreover, if — if you’re right,
even in California, if they have — if they’re right or,
you know, if a pact is enough, they won’t get Federal
benefits, those that are tied to marriage, because
they’re not married. So — so a State that does nothing
hurts them much more, and yet your brief seems to say
it’s more likely to be justified under the Constitution.

I’d like to know with some specificity how
that could be.

GENERAL VERRILLI: Well, because you have to
measure the — under the standard of equal protection
scrutiny that we think this Court’s cases require.

JUSTICE BREYER: I know the principle, but
I’m saying which are their good arguments, in your
opinion, that would be good enough to overcome for the

State that does nothing, but not good enough to overcome
California where they do a lot?

GENERAL VERRILLI: Well, we — what we’re -what
we’re saying about that is that we’re not prepared
to close the door to an argument in another State where
the State’s interests haven’t cut the legs out from
under the arguments. And I think — I suppose the
caution rationale that Mr. Cooper identified with
respect to the effects on children, if it came up in a
different case with a different record, after all here,
this case was litigated by Petitioners on the theory
that rational basis applied and they didn’t need to show
anything, and so they didn’t try to show anything.

Our view is that heightened scrutiny should

apply, and so I don’t want to — I don’t want to kid
about this, we understand, that would be a very heavy
burden for a State to meet. All we’re suggesting is
that in a situation in which the — the State interests
aren’t cut out from under it, as they — as they are
here, that that issue ought to remain open for a future
case. And I — and I think the caution rationale would
be the one place where we might leave it open. Because
you can’t leave it open in this case.

JUSTICE SOTOMAYOR: General, there is an
irony in that, which is the States that do more have

less rights.

understand that, Your Honor, but I do think that you
have to think about the claim of right on the other side
of the equation here. And in this situation,
California — the argument here that — that gay and
lesbian couples can be denied access to marriage on the
ground of an interest in responsible procreation and
child rearing just can’t stand up given that the parents
have full equality, the gay and lesbian parents have
full equality apart from –

JUSTICE ALITO: You want us to assess the
effects of same-sex marriage, the potential effects
on — of same-sex marriage, the potential — the effects
of Proposition 8. But what is your response to the
argument which has already been mentioned about the need
to be cautious in light of the newness of the — the

concept of — of same-sex marriage.

The one thing that the parties in this case
seem to agree on is that marriage is very important.
It’s thought to be a fundamental building block of
society and its preservation essential for the
preservation of society. Traditional marriage has been
around for thousands of years. Same-sex marriage is
very new. I think it was first adopted in The

Netherlands in 2000. So there isn’t a lot of data about
its effect. And it may turn out to be a — a good
thing; it may turn out not to be a good thing, as the
supporters of Proposition 8 apparently believe.

But you want us to step in and render a
decision based on an assessment of the effects of this
institution which is newer than cell phones or the
Internet? I mean we — we are not — we do not have the
ability to see the future.

On a question like that, of such fundamental
importance, why should it not be left for the people,
either acting through initiatives and referendums or
through their elected public officials?

GENERAL VERRILLI: I have four points I
would like to make to that in response to that,
Justice Alito, and I think they are all important.

First, California did not through
Proposition 8 do what my friend Mr. Cooper said and push
a pause button. They pushed a delete button. This is a
permanent ban. It’s in the Constitution. It’s supposed
to take this issue out from the legislative process. So
that’s the first point.

Second –

JUSTICE ALITO: Well, just in response to

that, of course the Constitution could be amended,

and — and I think I read that the California

Constitution has been amended 500 times.


JUSTICE ALITO: So it’s not exactly like the

U.S. Constitution.

GENERAL VERRILLI: But it does — of course
not. But it is — but the aim of this is to take it out
of the normal legislative process.

The second point is that, with respect to
concerns that Your Honor has raised, California has been
anything but cautious. It has given equal parenting
rights, equal adoption rights. Those rights are on the
books in California now, and so the interest of
California is — that Petitioners are articulating with

respect to Proposition 8, has to be measured in that

JUSTICE SCALIA: Yeah, but the rest of the
country has been cautious.

GENERAL VERRILLI: And — and that’s why –

JUSTICE SCALIA: And we’re — and you are
asking us to impose this on the whole country, not just

GENERAL VERRILLI: No, respectfully
Justice Scalia, we are not. Our position is narrower
than that. Our position — the position we have taken,

is about States, it applies to States that have, like
California and perhaps other States, that have granted
these rights short of marriage, but –

CHIEF JUSTICE ROBERTS: I don’t want to — I
want you to get back to Justice Alito’s other points,
but is it the position of the United States that
same-sex marriage is not required throughout the

GENERAL VERRILLI: We are not — we are not

taking the position that it is required throughout the
country. We think that that ought to be left open for a
future adjudication in other States that don’t have the
situation California has.

JUSTICE SCALIA: So your — your position is
only if a State allows civil unions does it become
unconstitutional to forbid same-sex marriage, right?

GENERAL VERRILLI: I — I see my red light
is on.

CHIEF JUSTICE ROBERTS: Well, you can go on.


Our position is — I would just take out a
red pen and take the word “only” out of that sentence.
When that is true, then the Equal Protection Clause
forbids the exclusion of same-sex marriage, and it’s an
open question otherwise.

And if I could just get to the third reason,
which I do think is quite significant.

The argument here about caution is an
argument that, well, we need to wait. We understand
that. We take it seriously. But waiting is not a
neutral act. Waiting imposes real costs in the here and
now. It denies to the — to the parents who want to
marry the ability to marry, and it denies to the
children, ironically, the very thing that Petitioners
focus on is at the heart of the marriage relationship.

CHIEF JUSTICE ROBERTS: But you are willing
to wait in the rest of the country. You saying it’s got
to happen right now in California, but you don’t even
have a position about whether it’s required in the rest
of the country.

GENERAL VERRILLI: If — with respect to a
State that allows gay couples to hav

e children and to

have families and then denies the stabilizing effect –

happen right away in those States where same-sex couples
have every legal right that married couples do.

GENERAL VERRILLI: Well, we think –

CHIEF JUSTICE ROBERTS: But you can wait in
States where they have fewer legal rights.

GENERAL VERRILLI: What i said is it’s an

open question with respect to those States and the Court
should wait and see what kind of a record a State could
make. But in California you can’t make the record to
justify the exclusion.

And the fourth point I would make on this,
recognizing that these situations are not –

JUSTICE SOTOMAYOR: How would the record be
different elsewhere?

GENERAL VERRILLI: Well, they might try to
make a different record about the effects on children.
But there isn’t a record to that effect here.

And the fourth point I would make, and I do
think this is significant, is that the principal
argument in 1967 with respect to Loving and that the
Commonwealth of Virginia advanced was: Well, the social
science is still uncertain about how biracial children
will fare in this world, and so you ought to apply
rational basis scrutiny and wait. And I think the Court
recognized that there is a cost to waiting and that that
has got to be part of the equal protection calculus.
And so — so I do think that’s quite fundamental.


problem about –


CHIEF JUSTICE ROBERTS: — I — it seems to

me that your position that you are supporting is
somewhat internally inconsistent. We see the argument
made that there is no problem with extending marriage to
same-sex couples because children raised by same-sex
couples are doing just fine and there is no evidence
that they are being harmed. And the other argument is
Proposition 8 harms children by not allowing same-sex
couples to marriage. Which is it?

GENERAL VERRILLI: Well, I — I think what
Proposition 8 does is deny the long-term stabilizing
effect that marriage brings. That’s — that’s the
argument for — for marriage, that –

CHIEF JUSTICE ROBERTS: But you also tell me
there has been no harm shown to children of same-sex

GENERAL VERRILLI: California — there are
37,000 children in same-sex families in California now.
Their parents cannot marry and that has effects on them
in the here and now. A stabilizing effect is not there.
When they go to school, they have to, you know — they
don’t have parents like everybody else’s parents.
That’s a real effect, a real cost in the here and now.

JUSTICE BREYER: Well, the real cost right
now would be you’re asking me to write these words: “A
State that has a pact has to say ‘marriage,'” but I’m

not telling you about States that don’t. Well, I would

guess there is a real-world effect there, too. That
States that are considering pacts will all say “we won’t
do it,” or not all, but some would. And that would have
a real effect right now. And at the moment, I’m
thinking it’s much more harmful to the gay couple, the
latter than the former. But you won’t give me advice as
the Government as to how to deal with that.

GENERAL VERRILLI: Well, we — we think
that, as I started my argument, Your Honor, that all the
warning flags for exacting equal protection scrutiny are
present here. This is a group that has suffered a
history of terrible discrimination. The Petitioners
don’t deny it.

Petitioners said at the podium today that
there is no justification for that discrimination in any
realm other than the one posed in this case, and the -and
so when those two factors are present, those are
paradigm considerations for the application of
heightened scrutiny, and so I don’t want to suggest that
the States that haven’t taken those steps –

JUSTICE SOTOMAYOR: But they are not the
only ones.

GENERAL VERRILLI: — that States that
haven’t taken this step, that they are going to have an

easy time meeting heightened scrutiny, which I think has
to apply –

JUSTICE GINSBURG: Suppose one of those
States repeals its civil union laws?

GENERAL VERRILLI: It would be a different
case. And all I’m saying is that the door ought to
remain open to that case, not that it would be easy for
the State to prevail in that case.

CHIEF JUSTICE ROBERTS: Thank you, General.
Mr. Cooper, to keep things fair, I think you
have 10 minutes.


MR. COOPER: Thank you very much.

JUSTICE KENNEDY: And you might address why

you think we should take and decide this case.

MR. COOPER: Yes, Your Honor, and that is
the one thing on which I wholeheartedly agree with my
friend Mr. Olson. This case was properly — is now
properly before the Court and was properly granted, even
if, even if, Your Honor, one could defend the — the
specific judgment below for the Ninth Circuit, a defense
that I haven’t heard offered to this Court. Judicial
redefinition of marriage even in — even if it can be
limited to California, is well worthy of this Court’s

attention, particularly, Your Honor, as it come from a

single district court judge in a single jurisdiction.

I would also like –

JUSTICE SOTOMAYOR: I think that begs
your — Mr. Olson doesn’t really focus on this. If the
issue is letting the States experiment and letting the
society have more time to figure out its direction, why
is taking a case now the answer?

MR. COOPER: Because, Your Honor –

JUSTICE SOTOMAYOR: We let issues perk, and
so we let racial segregation perk for 50 years from 1898
to 1954.

MR. COOPER: Your Honor, it is hard to –

JUSTICE SOTOMAYOR: And now we are only
talking about, at most, four years.

MR. COOPER: It is hard to imagine a case
that would be better, or more thoroughly, I should say,
at least, briefed and argued to this Court.

JUSTICE SCALIA: It’s too late for that, too
late for that now, isn’t it? I mean, we granted cert.
I mean, that’s essentially asking, you know, why did we
grant cert. We should let it percolate for another -you
know, we — we have crossed that river, I think.

MR. COOPER: And in this particular case, to
not grant certiorari is to essentially bless a judicial

decision that there — that at least in the State of
California, the people have no authority to step back,
hit the pause button, and allow the experiments that are
taking place in this country to further mature; that in
fact, at least in California — and it’s impossible to
limit this ruling, Your Honor, even to California, even
the Solicitor General’s argument, he says, applies to at
least eight States.

It’s impossible to limit these propositions
to any particular jurisdiction, so this Court would be
making a very real decision with respect to same-sex
marriage if it should simply decide to dismiss the writ
as improvidently granted, Justice Kennedy.

And let’s just step back and just consider
for a moment the Solicitor General’s argument. He is
basically submitting to the Court that essentially the
one compromise that is not available to the States is
the one that the State of California has undertaken;
that is, to go as far as the people possibly can in
honoring and recognizing the families and the
relationships of same-sex couples, while still
preserving the existence of traditional marriage as an
institution. That’s the one thing that’s off the table.

JUSTICE GINSBURG: I thought he was saying,
Mr. Cooper, that it’s not before the Court today. And

remember Loving against Virginia was preceded by the
McLaughlin case. So first there was the question of no
marriage, and then there was marriage.

So, in that sense I understood the Solicitor

General to be telling us that case is not before the
Court today.

MR. COOPER: Forgive me, Justice Ginsburg.
The case of — what case isn’t before the Court?

JUSTICE GINSBURG: I think it was McLaughlin
against Florida.


JUSTICE GINSBURG: It was cohabitation of
people of different races.

MR. COOPER: Certainly.

JUSTICE GINSBURG: And the Court took that
case and waited to reach the merits case.

MR. COOPER: It’s — yes, Your Honor. And
well, forgive me, Your Honor. I’m not sure I’m
following the Court’s question.

JUSTICE GINSBURG: I may — my memory may be
wrong, but I think the case was that people of different
races were arrested and charged with the crime of
interracial cohabitation. And the Court said that that
was invalid.



MR. COOPER: Yes. Thank you, Your Honor.
Forgive me. And, you know, I’m glad that counsel for
the Respondents mentioned the Loving case, because what
this Court — what this Court ultimately said was
patently obvious, is that the colors of the skin of the
spouses is irrelevant to any legitimate purpose, no more
so than their hair colors, any legitimate purpose of
marriage, that interracial couples and same-race couples
are similarly situated in every respect with respect to
any legitimate purpose of marriage.

That’s what this question really boils down
here, whether or not it can be said that for every
legitimate purpose of marriage, are opposite-sex couples
and same-sex couples indistinguishable,
indistinguishable. And with all due respect to counsel
and to the Respondents, that is not a hard question.

If, in fact, it is true, as the people of
California believe that it still is true, that the
natural procreative capacity of opposite-sex couples
continues to pose vitally important benefits and risks
to society, and that’s why marriage itself is the
institution that society has always used to regulate
those heterosexual, procreative — procreative

Counsel — the Solicitor General has said
that the ban that the proposition erects in California
is permanent. Well, it’s — certainly that is not the
view of the Respondents and what we read every day.
This is not an issue that is now at rest in the State of
California, regardless — well, unless this Court
essentially puts it to rest. That democratic debate,
which is roiling throughout this country, will
definitely be coming back to California.


It is an agonizingly difficult, for many
people, political question. We would submit to you that
that question is properly decided by the people

Thank you, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: Thank you, counsel,

The case is submitted.

(Whereupon, at 11:27 a.m., the case in the
above-entitled matter was submitted.)

Official – Subject to Final Review
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Official – Subject to Final Review
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Official – Subject to Final Review
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Official – Subject to Final Review
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Official – Subject to Final Review
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Official – Subject to Final Review
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Official – Subject to Final Review
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Official – Subject to Final Review
41:5,18 53:11 15:3 16:12,13 27:16 34:23 perform 31:14 57:9 60:5,12
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Official – Subject to Final Review
55:22,23 23:21 25:1 38:16 50:1 51:24 56:10 really 10:14,15
preserving 65:22 26:18 45:20 51:12 52:13 58:25 60:1 66:2 10:24,25 11:4
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Official – Subject to Final Review
regardless 15:25 resonates 49:14 36:5,6,6,10,14 12:19 13:6 14:1 28:17
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Official – Subject to Final Review
29:14,14 65:12 specific 5:18 35:3,6,15,16 Strom 25:22 56:20
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Official – Subject to Final Review
tenuous 51:3 59:22 60:13,18 51:18 undertaken Virtually 13:17
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Official – Subject to Final Review
weigh 21:7 10 63:11 70 48:4
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New York Times – U.S. Asks Justices to Reject California’s Ban on Gay Marriage

U.S. Asks Justices to Reject California’s Ban on Gay Marriage
Published: February 28, 2013 202 CommentsEngaygementgolddiamondRing Ad

The Obama administration threw its support behind a broad claim for marriage equality on Thursday, and urged the Supreme Court to rule that voters in California were not entitled to ban same-sex marriage there.
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In a forceful argument, the administration claimed that denying gay couples the right to marry violates the Constitution’s equal protection clause. It said that Proposition 8, the state’s ban on same-sex marriage, should be subjected to “heightened scrutiny” — a tough test for any law — and stated flatly that “Proposition 8 fails heightened scrutiny.”

That argument is similar to the one made in the administration’s brief in a second case before the Supreme Court concerning the Defense of Marriage Act of 1996, which the administration has also asked the court to declare unconstitutional.

The latest brief, filed late Thursday, does not, however, ask the court to declare such bans unconstitutional nationwide; instead, it focused on Proposition 8, which was approved by voters in 2008 and is before the court in this case. That law was passed by a voter initiative just months after the state’s Supreme Court ruled that same-sex couples could marry. The brief notes that opponents of same-sex marriage in the Californ

ia case have argued that the state offers, through the equivalent of domestic partnerships, a marital state in all but the name.

The government also points out that seven other states — Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island — have a similar all-but-marriage frameworks, and says that “the designation of marriage, however, confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match.”

While the brief does not call explicitly for the court to strike down the laws in the seven other states, the implication of its argument is clear. Attorney General Eric H. Holder Jr. issued a statement that tied the government’s argument into the fundamental struggle against discrimination and for civil rights, saying that the brief “seeks to vindicate the defining constitutional ideal of equal treatment under the law.” He said that the court’s decisions concerning the two same-sex marriage cases “are not just important to the tens of thousands of Americans who are being denied equal benefits and rights under our laws, but to our nation as a whole.”

The government’s brief concludes with a ringing denunciation of the California ban on same-sex marriage, which it said is based in “impermissible prejudice.”

It then cited a concurrence in a 2001 Supreme Court case that said prejudice might not rise “from malice or hostile animus,” and might well be the result of “insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.”

No matter, the brief said. “Prejudice may not, however, be the basis for differential treatment under the law.”

The author of that concurrence is Justice Anthony M. Kennedy, who is expected to be a crucial voice within the court in both of the current cases.

Andrew P. Pugno, the general counsel for supporters of Proposition 8, called the administration’s brief very disappointing. “By arguing that Proposition 8 is rooted only in irrational prejudice, the president has impugned the motives of millions of Californians, turned his back on society’s longstanding interest in both mothers and fathers raising the next generation, and disregarded the rights of each state to decide for itself whether to redefine marriage,” he said.

The federal government is not a party to the California case, Hollingsworth v. Perry, No. 12-144, and was not required to take a position in it. But the lawyers who filed the challenge to Proposition 8, Theodore B. Olson and David Boies, along with gay rights groups, lobbied for the brief, saying the administration could not stay silent on the issue.

The broad outlines of the administration’s position in the California case are similar to those it filed in a brief last week in a same-sex marriage case in which it is a party, United States v. Windsor, No. 12-307. But that case presents only the narrower question of the constitutionality of part of the federal Defense of Marriage Act, which defines marriage as the union of a man and a woman for


the purposes of more than 1,000 federal laws and regulations.

The Supreme Court’s ruling in the Defense of Marriage Act case will at most decide whether the federal government can discriminate against same-sex couples even if they married in states that allow such unions. Nine states and the District of Columbia allow same-sex marriage.The case from California presents the broader question of whether there is a constitutional right to same-sex marriage in the states that do not allow it, which is why the brief is significant. It is uncertain, however, that the Supreme Court will end up deciding that broad question. The court may well avoid the issue on technical grounds or rule in a way that applies only to California.

Until not long ago, the administration was thought likely to stay out of the California case, partly as a matter of historical practice and partly to be true to President Obama’s public position on same-sex marriage. The federal government took no position in 1967 in Loving v. Virginia, the case in which the Supreme Court struck down bans on interracial marriage, or in 2003 in the last major gay rights case, Lawrence v. Texas, which struck down state laws making gay sex a crime.

Moreover, when Mr. Obama announced his support for same-sex marriage, he said the matter was for the states to decide.

On the other hand, Mr. Obama has long opposed Proposition 8.


I am not in favor of gay marriage,” Mr. Obama told MTV News in 2008. “But when you start playing around with constitutions, just to prohibit somebody who cares about another person, it just seems to me that’s not what America’s about. Usually, our constitutions expand liberties, they don’t contract them.”

But Mr. Obama has since embraced a more sweeping view of marriage equality. “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law,” he said in his Inaugural Address, “for if we are truly created equal, then surely the love we commit to one another must be equal, as well.”

Supporters of marriage rights for same-sex couples applauded the brief. Chad Griffin, who founded the organization that filed the legal challenge to Proposition 8 and now heads the Human Rights Campaign, an advocacy group in Washington, called it “another historic step forward consistent with the great civil rights battles of our nation’s history.” He said President Obama had “turned the inspirational words of his second Inaugural Address into concrete action.”

Both briefs argue that courts should subject laws making distinctions between straight and gay people to “heightened scrutiny,” requiring a showing that such laws are “substantially related to an important government objective.”

The administration argues that the factors, including a history of discrimination, that led courts to require heightened scrutiny for laws on gender and illegitimacy should also require it for those addressing sexual orientation.

The California case is scheduled to be argued March 26 and the one concerning the federal law March 27. Solicitor General Donald B. Verrilli Jr. will probably present the federal government’s position in both cases, and he is likely to be questioned closely about changes and possible inconsistencies in the administration’s position.

Michael D. Shear contributed reporting.

Los Angeles Times – Gay marriage in the balance as Supreme Court takes up Prop. 8

Gay marriage in the balance as Supreme Court takes up Prop. 8
December 7, 2012 | 3:53 pm

Gay rights activists said the stakes were high as the U.S. Supreme Court on Friday agreed to decide the issue of gay marriage.

The high court will decide on the legality of Proposition 8, the ban on same-sex unions approved by California voters in 2008.

“I think any time our gay issues go to the U.S. Supreme Court we are all filled with anxiety because you never know,” said West Hollywood City Councilman John Duran. “We have a lot of anxiety because we realize whatever decision they make, if it’s adverse, we have to live with it for a generation.”

MAP: How gay marriage has progressed in the U.S.

Gay marriage foes were decidedly more ebullient, saying they liked their chances in front of the high court.

“Arguing this case before the Supreme Court finally gives us a chance at a fair hearing, something that hasn’t been afforded to the people since we began this fight,” said Andy Pugno, general counsel for Protect

Others said they would be on edge until the high court rules.

Q&A: Prop. 8, gay marriage and the Supreme Court

“No one cries at civil unions or a domestic partnership. No one cries at signing a document at the courthouse. They cry at weddings,” said Dave Reynolds, 28, of Santa Monica, who married his husband in August in New York, where same-sex unions are legal.

Reynolds and his husband, JJ Shepherd, 31, first met as kids at summer camp. They would have preferred to get married in California, but they want to start a family with the legal protections a marriage license will grant them. The couple also wanted to tie the knot around the same age as their opposite-sex peers.

“We couldn’t wait for California to do it,” Reynolds said. His husband is an attorney, “so we know how long it was going to take.”
TIMELINE: Gay marriage since 2000

By agreeing to review Hollingsworth vs. Perry, the justices could hand activists a historic victory and legalize same-sex marriage nationwide. But gay rights advocates are also well aware that the court could rule against them and set the movement back at a time when same-sex marriage has seen a series of election victories at the state level.

“I think it’s the critical issue for gay and lesbian Americans today. It’s the issue that signals full equality and respect. Not just acceptance — respect,” said Tom Watson, the board chairman of Love Honor Cherish, a group that has advocated for a ballot initiative to repeal Proposition 8.

“The case goes directly to the scope of civil rights in this country, whether they’re extended to everybody or defined very narrowly,” Watson said.

Watson, a Los Angeles attorney, said he expected the justices to take the case, though it was tough to predict how the conservative-leaning court might rule. He noted that the court asked the parties to address whether supporters of Proposition 8 have standing, or the right to defend the measure. Normally, state officials would defend a state law being scrutinized by the Supreme Court, but California’s leaders have declined to do so.

If the court found that Proposition 8 supporters do not have standing, the justices would not have to rule on the merits of the case. Under those circumstances, the U.S. 9th Circuit Court of Appeals ruling that the measure is unconstitutional would stand and same-sex marriages could resume in California.
“It would be winning on a technicality,” Watson said.

Because of the uncertainty, Watson said his group would continue to consider pushing forward with a 2014 ballot measure to repeal Proposition 8. Either way, he said, California’s gay and lesbian couples are in for a frustrating wait.

“We have kids growing up with parents that don’t have the legal protections that marriage gives,” Watson said. “And, let’s face it, people die.”

Watson said someone had recently emailed his group asking whether his friends could get married. One member of the same-sex couple was in a hospice.

It pained Watson to send the answer: no.

Chi Chi LaRue, a 53-year-old West Hollywood resident, said he was “exhausted” by the ups and downs of the legal process.

On Friday, when reached by The Times for comment just as he was landing in Las Vegas, he said he was caught off guard: “I don’t have anything to say because I can’t process it.”