Oral arguments begin in Prop 8 Supreme Court case

It is the first same-sex marriage case to reach the high court

Topics: prop 8, Gay Marriage, Marriage equality, , ,

Oral arguments begin in Prop 8 Supreme Court case (Credit: AP Photo/Pablo Martinez Monsivais)

The Supreme Court will hear arguments on Tuesday to determine if California’s Proposition 8, the initiative that banned gay marriage in the state, violates the Constitution’s guarantee of equal protection. It is the first same-sex marriage case to reach the high court.

The two couples challenging the ban are calling on the justices to strike down Prop 8 because they say it violates their constitutional rights of equal treatment and due process.

One of the couples named in the case, Kris Perry and Sandy Stier, had their 2004 marriage invalidated by the California Supreme Court ruling on Prop 8. They have been together for 13 years, and have four children. In an interview with the Associated Press, Perry said that in the four years since the case began, her family has “lived our lives in this hurry-up-and-wait, pins-and-needles way.”

“It’s such a weird road we’ve been on,” Perry added.

The second couple, Paul Katami and Jeff Zarrillo, have been together for 12 years.

Defending the voter-approved marriage ban is Dennis Hollingsworth, a former Republican state senator and head of Protect Marriage, the financial wing of the Prop 8 defense fund. The group has stepped in to defend the provision because California state officials have refused to do so.

As the Associated Press reports, there are several possible outcomes from this high profile case:

In addition to upholding the ban and invalidating prohibitions everywhere, the justices could endorse an appeals court ruling that would make same-sex marriage legal in California but apply only to that state. They also could issue a broader ruling that would apply to California and eight other states: Colorado, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. In those states, gay couples may join in civil unions or become domestic partners and have all the benefits of marriage but cannot be married.

One other possibility is a ruling that says nothing about marriage. California’s top elected officials, Gov. Jerry Brown and Attorney General Kamala Harris, are refusing to defend Proposition 8, and there is a question about whether the Proposition 8 supporters have the right, or legal standing, to defend the measure in court. If the justices decide they do not, the case would end without a high court ruling about marriage, although legal experts widely believe same-sex marriages would quickly resume in California.



The case was filed by Theodore B. Olson and David Boies, and as The New York Times notes, the two lawyers had previously argued on opposite sides in Bush v. Gore, the Supreme Court case that settled the outcome of the 2000 presidential election.

One of the attorneys for the Prop 8 defense is Charles Cooper, a former colleague of Olson’s at the Justice Department during the Reagan administration.

The high court will hear oral arguments Tuesday, and is expected to rule in June.

Katie McDonough is Salon's politics writer, focusing on gender, sexuality and reproductive justice. Follow her on Twitter @kmcdonovgh or email her at kmcdonough@salon.com.

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