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  • Sasha Issenberg

March 26, 2013: Supreme Court hears Prop 8 case


The U.S. Supreme Court heard a challenge to California’s Proposition 8, the first-ever case related to same-sex marriage to come before the court.

For years, gay-rights litigators had aggressively discouraged any federal marriage lawsuit that could end up before the high court. Not only was the court unlikely to rule in favor of same-sex families, they argued to would-be plaintiffs and other lawyers, but an adverse ruling could set dangerous precedents whose impact would be felt far beyond the scope of the original suit.

That was the reaction when David Boies and Ted Olson, two high-profile attorneys who had faced off in Bush v. Gore, announced in May 2009 that they were filing a lawsuit with the primary objective of getting the nine justices to rule on whether gay and lesbian couples had the right to marry under the Constitution. By the time Perry v. Hollingsworth reached the justices during their 2012-2013 term, the case had spawned two separate questions. The court would hear arguments about the merits of Proposition 8, the state constitutional amendment approved by California voters in November 2008 to end same-sex marriage in the state. But they would have to rule on that only if they first decided that the ballot initiative’s proponents had the standing to mount a legal defense of a law that no state officials felt they could justify.

Oral arguments pitted Olson against Charles Cooper on the big question about equal marriage rights, with both pitching their rhetoric at Justice Anthony Kennedy, a Republican-appointed swing justice who had authored majority opinions in the court’s two most recent major gay-rights cases. For the court’s liberals, Kennedy’s apparent discomfort with the impact of a ruling for the plaintiffs — striking down Proposition 8 could force all fifty states to begin marrying gay couples — might be a reason to back off. “If the issue is letting the states experiment and letting the society have more time to figure out its direction,” Justice Sonia Sotomayor proposed, “why is taking a case now the answer?”

Kennedy indicated he understood that he was ready to reach for the escape hatch posed by the technical question about standing. “I just wonder,” he mused at one point, “if this case was properly granted.”


The Engagement:
America's Quarter-Century
Struggle Over Same-Sex Marriage

​By Sasha Issenberg

The riveting story of the battles over gay marriage
in the United States – the most important
civil-rights breakthrough of the new millennium.
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