WASHINGTON -- The Supreme Court is scheduled to hear an hourlong argument on this morning over the constitutionality of Proposition 8, California's ban on same-sex marriage. Here is a look at the background of the case, Hollingsworth v. Perry, No. 12-144; the issues it raises; the lawyers who will argue it; and the possible outcomes.
What is at stake?
If the court is to establish a constitutional right to same-sex marriage, it will be in this case and not in a narrower one to be argued on Wednesday about the federal Defense of Marriage Act.
How did the case start?
In 2008, just months after the California Supreme Court endorsed same-sex marriage, the state's voters amended the State Constitution to repudiate the ruling and ban such unions. Two prominent lawyers, Theodore Olson and David Boies, challenged the ban as a violation of the federal Constitution on behalf of two same-sex couples.
The lawyers are ideological opposites who faced off in Bush v. Gore, the Supreme Court case in late 2000 that delivered the presidency to George W. Bush. Some gay rights activists worried that their legal strategy in this case was too aggressive.
After a trial, a judge in San Francisco struck down Proposition 8 in a broad ruling whose logic would apply to bans around the nation. California officials did not appeal the ruling against them.
The U.S. 9th Circuit Court of Appeals, in San Francisco, ruled that proponents of Proposition 8 had standing to appeal the judgment against the state. The court then affirmed the trial judge's decision but on a narrower ground, saying voters were not entitled to withdraw a constitutional right once it had been established by the state Supreme Court.
The reasoning of the appeals court decision, calculated to appeal to Justice Anthony M. Kennedy, would not directly threaten bans in other states.
What is the Obama administration's position?
Solicitor General Donald Verrilli Jr. urged the Supreme Court to strike down Proposition 8, focusing on a ground that would apply to California and seven other states. He said it violated the Constitution's equal protection clause to confer all the benefits and burden of marriage on gay and lesbian couples through civil unions but withhold the label "marriage."
How long will the argument last?
The argument is scheduled for one hour. It will probably start around 10:15 a.m. Eastern time, after one or more of the justices summarize decisions released that day. In major cases, Chief Justice John G. Roberts Jr. typically allows lawyers a little extra time, so the arguments may not conclude until 11:30 or so. Transcripts and audio recordings will be available by about 1 p.m.
Who is arguing?
Charles Cooper, a lawyer for the proponents of Proposition 8, will have half an hour. He will probably get questions about his clients' standing and the reasons offered to support the ban on same-sex marriage. Olson, representing the couples who are challenging the ban, has 20 minutes. He will most likely be asked why the issue should be withdrawn from public debate and a fast-moving political process. Verrilli will have 10 minutes, and he will probably be asked about shifts in the Obama administration's positions.
What legal standard will the Supreme Court use?
In ordinary cases, courts considering whether a federal law violates equal protection principles merely ask whether the law can be justified by a rational reason. That is a low bar, though several courts have struck down laws discriminating against gay men and lesbians under that standard. Gay rights advocates are hoping that the Supreme Court will embrace a more robust standard of review, "heightened scrutiny," which requires a showing that the challenged law is "substantially related to an important government objective." Victory on that point could put all same-sex marriage bans at risk.
What justifications have supporters of Proposition 8 offered?
They say that preserving the traditional definition of marriage will "further society's vital interests in responsible procreation and child rearing." Those interests would be undermined, they say, by "officially redefining marriage as a genderless institution." It is rational, they add, to proceed with caution in changing the definition of marriage, to respect societal judgments made through the democratic process.
How do supporters of same-sex marriage respond?
They say that allowing gay and lesbian couples to marry would not make it any more likely that straight couples would act irresponsibly. They add that courts must protect the fundamental rights of disfavored minorities.
Who are the justices to watch?
Kennedy probably holds the decisive vote, and he is the author of the two leading gay rights cases. But he is notoriously hard to read. Roberts may be intrigued by the standing question, and his questions on that issue may suggest whether he might find dismissal on that ground an attractive offramp.
What are the possible outcomes?
The court may say the Constitution requires all states to allow gay and lesbian couples to marry. At the other extreme, the court may say the Constitution is silent on the question, leaving states free to allow or reject same-sex marriage. (There is no possibility that the court would ban same-sex marriage in places that choose to permit it.) There are also intermediate possibilities. The court could adopt a rationale that would apply only to California along the lines of the one endorsed by the 9th Circuit. It could adopt the "eight-state solution" suggested by the Obama administration. Or it could dismiss the case for want of standing, which would probably effectively allow same-sex marriages in California, the nation's most populous state.
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