Showdown at the Supreme Court Day 1: The Prop 8 Arguments

History was made this morning as the U.S. Supreme Court took up the first of two cases that will impact the lives of millions of LGBT Americans. This is not, however, the first time the court has dealt with the issue.  Legal reporter Linda Greenhouse wrote about the incident in a recent column for the New York Times. In 1971, the Justices were asked to take up a case now known as Baker v. Nelson.

“Jack Baker was a student at the University of Minnesota, where he was a well-known gay-rights activist, when he and his partner, James McConnell, showed up at the county clerk’s office to apply for a marriage license. The year was 1970,” Greenhouse writes. But the court wasn’t ready to act. “On Oct. 10, 1972, it issued a one-sentence decision in Baker v. Nelson: “The appeal is dismissed for want of a substantial federal question.” The ruling was unanimous.”

Fast forward forty one years. Over half of the country now supports same-gender marriage, including the openly gay cousin of Chief Justice John Roberts who tells the National Center for Lesbian Rights she believes the Court will do the right thing,“I feel confident that John is wise enough to see that society is becoming more accepting of the humanity of same-sex couples and the simple truth that we deserve to be treated with dignity, respect and equality under the law,” Jean Podrasky writes in a recent column.

Not everyone, including Justice Antonin Scalia, holds the same opinion, of course.  As the New York Times points out,”He (Scalia) has made it abundantly plain that he has no use for same-sex unions; he thinks they are immoral. In his Lawrence v. Texas dissent, for instance, he said Americans have every right to enforce “the moral opprobrium that has traditionally attached to homosexual conduct” in order to protect “themselves and their families from a lifestyle that they believe to be immoral and destructive.”

None the less, the court has now heard the arguments for and against Proposition 8, a ballot measure approved by California voters in 2008 that stripped away existing marriage rights in the state for same-sex couples.

According to the Washington Blade’s Chris Johnson,”In the Prop 8 case, known as Hollingsworth v. Perry, Ted Olson, a former solicitor general under President George W. Bush, will argue against the constitutionality of the measure on behalf of the American Foundation for Equal Rights. Based on the legal brief he filed, Olson will likely argue against the merits of Prop 8 on the basis that it violates due process and equal protection of gay plaintiff couples under the U.S. Constitution.”

“Depending on the scope, a ruling in the Prop 8 case in favor of the plaintiffs could be a jackpot for same-sex couples. Justices could affirm the limited ruling from the U.S. Ninth Circuit Court of Appeals, which affected only California; determine that the nine states, including California, that offer domestic partnerships must offer same-sex marriage; or issue a sweeping ruling that brings marriage equality to all 50 states,” Johnson writes.

While a ruling on the matter isn’t expected before June, some believe it could come down to the decision of one man, Justice Anthony Kennedy. Chris Miles, editor of PolicyMic writes,”Kennedy probably holds the decisive vote in this one, and he is the author of the two leading gay rights cases. But he is notoriously hard to read.”

While there is some hope with Kennedy, John Culhane over at the New Civil Rights Movement also points out that the Justice “was recently heard to murmur that the SCOTUS Justices should prefer the democratic process over their own undemocratic intervention.” So his support is very much still up in the air.

Culhane tells readers to watch  for a couple of things during the arguments,”The first thing to listen for is how the Court is thinking about laws that discriminate on the basis of sexual orientation.”

“The second area of interest is in the possible remedy if the Court thinks that Prop 8 was an unconstitutionally discriminatory exercise of power.”

CBS news points out after the Supreme Court today hears the case, realistically, it has five options to choose from…

1. “The Supreme Court could use Hollingsworth v. Perry to rule that marriage is a constitutional right available to all Americans, gay or straight.”

2.”The court could declare that same-sex marriage is not protected by the Constitution.”

3.”The Supreme Court may decide that states that recognize same-sex civil unions or domestic partnerships — and provide them with nearly the same benefits of marriage — cannot legitimately bar same-sex marriage.” (This one has more to do with the DOMA case to be heard on Wednesday, but it’s still something to keep in mind.)

4. “The Supreme Court ruling could apply just to California because of the case’s unique circumstances.”

5.”The Court could decide the proponents of Proposition 8 have no standing in court and dismiss the case entirely.”

As many have pointed out, a sixth outcome would be that the Court decides to simply apply its decision to the nine states as well as the District of Columbia that currently allow same-gender marriage, though this outcome is highly unlikely.

Of particular interest during this morning’s arguments appeared to be the question of “harm.” According to the USA Today during this morning’s arguments,”Justice Anthony Kennedy noted that there were 40,000 children in California with same-sex parents who would likely want their parents to have the same rights as heterosexual parents.”

Scalia appeared to maintain his anti-equality stance however,”saying that not enough information is known to determine whether same-sex parenting can be harmful to children.”

On a broader scale, the Justices also appeared to question the authority of California voters “to appeal a lower court ruling that blocked enforcement of the marriage ban.”

What will happen, though, is still anybody’s guess. One thing is for sure, as Chris Stoll, a senior staff attorney at the National Center for Lesbian Rights tells the Washington Blade, ”any decision from justices that would extend rights to gay couples — whether on the merits or through issues of standing — would be a “milestone” for the LGBT community.”

You can listen to the recording of the hourlong historic arguments, which will be made available at around 11:00 a.m. MST by CLICKING HERE. You can read a full transcript of the arguments HERE. The Court is expected to take up arguments on the so-called Defense of Marriage Act tomorrow.