Supreme Court marriage linkfest: Prop 8 case (updated)

The U.S. Supreme Court heard oral arguments today in Hollingsworth v. Perry, the challenge to California’s constitutional amendment that banned same-sex marriages. Proposition 8 passed by popular referendum in 2008.

Many links about today’s hearing and possible outcomes are after the jump. A separate post will cover tomorrow’s Supreme Court arguments in the challenge to the federal Defense of Marriage Act.

The Hill posted the full transcript from today’s oral arguments here (pdf).

You can listen to the hearing at the American Foundation for Equal Rights blog. That page includes other links related to Hollingsworth v. Perry: the legal arguments, background on the plaintiffs, and the attorneys arguing the case.

The pro-equality Alliance for Justice posted a helpful audio analysis. You can listen to several clips from the hearing and read brief descriptions of the issues at hand.

The Alliance for Justice also summarized the possible outcomes.

The Court has several options.

* It could simply reinstate the ban on same-sex marriage on California.

* It could uphold the Ninth Circuit decision and issue a ruling that applies only to California

* It could rule that states which already have legalized same-sex marriage cannot take it away.

* It could rule that the eight states which already have given same-sex couples all or almost all rights and benefits of marriage cannot deny them marriage itself.

* It could legalize same-sex marriage nationwide.

Or the Court could decide that the opponents of same-sex marriage lacked “standing” – that is, they did not have the right to appeal the 9th Circuit decision. That would leave the 9th Circuit decision in effect.

In this post for the SCOTUS blog, Marty Lederman describes the court’s options in more detail, especially the question of standing.

The SCOTUS blog’s Tom Goldstein argues that if the high court punts, citing the standing problem, “the Ninth Circuit’s decision striking down Proposition 8 will be vacated – wiped from the books – but U.S. District Judge Vaughn Walker’s judgment invalidating Proposition 8 would remain unaffected.” That said, Goldstein believes it may be difficult for the justices to reach any verdict five of the nine justices can agree on.

Also at SCOTUS blog, Amy Howe posted a “plain English” analysis of today’s oral arguments.

Here are more links to SCOTUS blog coverage of the case.

This chart from the New York Times shows how many states would be affected by each of the possible rulings in the Prop 8 case. Iowa law would be unchanged in any scenario, because thankfully, we don’t ban same-sex marriages.

Sam Baker wrote that “Several justices seemed to be looking for ways to avoid a sweeping ruling – or perhaps even a ruling at all.” Justice Anthony Kennedy, often considered a “swing vote” on the court, appeared most inclined to dismiss the case for lack of standing.

Adam Serwer summarized the arguments from attorneys on all sides and noticed a slip-up by Justice Antonin Scalia, “who apparently neither read the Obama administration’s brief nor paid full attention during oral argument.”

Scalia’s “rants” got a lot of attention today, including his irrelevant speculation about whether same-sex parents are harmful to children. It’s irrelevant because, as Justice Ruth Bader Ginsburg pointed out, California allows LGBT couples to adopt children.

At Roll Call, Steven Dennis and John Gramlich offer the “12 best gay marriage moments” at the Supreme Court.

UPDATE: Josh Barro believes the high court could Republicans a favor, because an “expansive court ruling would settle the gay-marriage issue for good, eliminating the need for 20 years of state legislative fights that will be painful for gays and hugely politically damaging to the Republican Party.” However, I don’t think there’s much chance for an expansive ruling that strikes down state-level marriage amendments. At most, justices might agree to let the California ban fall by the wayside.

Refusing to rule on the merits because Prop 8 supporters lack standing would be the easiest political path for Chief Justice John Roberts and Justice Kennedy. It would overturn Prop 8 without forcing any of the court’s conservatives to recognize the legal arguments for marriage equality.  

SECOND UPDATE: Justice Sonia Sotomayor dismantled one of the attorneys supporting Prop 8 in this portion of the oral arguments.

I got a kick out of these Georgetown University law students protesting outside the Supreme Court building against the justices’ decision to “review the arguments in Hollingsworth v. Perry using rational basis, the most lenient form of judicial review in the U.S. court system.”

The Massachusetts Supreme Court struck down a same-sex marriage ban using a “rational basis” standard. The Iowa Supreme Court applied “intermediate scrutiny” in the Varnum v Brien decision that struck down our state’s Defense of Marriage Act.

Marriage equality supporters want the U.S. Supreme Court to use “strict scrutiny,” a higher standard, to evaluate Proposition 8. Strict scrutiny “has the effect, inter alia, of shifting the burden of proof from the petitioner to the defendant, who ‘must prove that the law is narrowly tailored to the achievement of a compelling state interest.'”

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