MOSCOW, March 27 – RAPSI, Ingrid Burke.  The US Supreme Court [Court] heard oral arguments Tuesday in a case contesting California’s state legislative initiative defining marriage as between a man and a woman.

The legislative initiative at issue – popularly known as Prop 8 – was passed by referendum in November 2008. California voters were presented with the option of amending the state’s constitution with the following text: “Only marriage between a man and a woman is valid or recognized in California.” The passage of the initiative served to nullify an earlier decision by California’s Supreme Court that had permitted gay couples to marry within the state.

Two same-sex couples than challenged the initiative in federal court, claiming: “California relegates same-sex unions to the separate-but-unequal institution of domestic partnership. This unequal treatment of gays and lesbians denies them the basic liberties and equal protection under the law that are guaranteed by the Fourteenth Amendment to the United States Constitution.” (Citations omitted).

The plaintiffs sought a preliminary and permanent injunction of Prop 8 and any other initiative that would exclude gay and lesbian couples from the right to marry.

The federal court held that Prop 8 was unconstitutional. The decision was upheld on appeal by a higher federal court, although the latter order was stayed pending the Supreme Court’s decision.

Petitioners in the case are citizens advocating Prop 8, represented by attorney Charles Cooper. Respondents are advocates for the constitutional rights of same-sex couples to marry, represented by Theodore Olson.

The issue posed by petitioners in this case is that of: “Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.”

The parties were instructed to consider as well whether the petitioners in fact have legal standing to bring the case before the Court.

The latter issue dominated the start of oral arguments Tuesday.

No sooner did Cooper launch into his argument than did Chief Justice Roberts interrupt him with the prompt, “Maybe it’d be better if you could begin with the standing issue.”

The US Constitution lays out a series of requisite requirements that must be met before a party has standing to pursue a court claim.

While all seemed to agree that the State of California would have had the right to defend the proposition, it would be unprecedented for individual citizens who supported the ballot initiative to do so in its place.

Cooper readily admitted when questioned on the point by Justice Ginsburg that the US has never granted standing to proponents of ballot initiatives.
Justice Sotomayor noted: “Generally the people who get to enforce the legislation of the government are people who are in government positions elected by the people.”

She added with reference to the five petitioners, “these individuals are not elected by the people or appointed by the people.”

Cooper countered that under California’s Constitution and case law, proponents of a ballot initiative are vested with various responsibilities, including defense of such initiative if public authorities fail to step up to the plate.

Speaking for the respondents, Olson argued that: “California cannot create Article III standing by designating whoever it wants to defend the State of California in connection with the ballot.”

Justice Alito noted that it would be ironic if the only people entitled to defend a ballot initiative would be state officials, as they are the ones bound to uphold the law chosen by the people. He pointed out: “the whole point of the initiative process was to allow the people to circumvent public officials about whom they were suspicious.”

The standing issue will prove crucial to whether or not the case will have any bearing on gay marriage rights nationwide. That is, if the petitioners are deemed not to have standing, the Court will have to reject the case. If the case is rejected, the lower court’s stay will be removed and the initiative will be repealed. This, however, would only impact California, while many Americans remain hopeful for a more sweeping answer either for or against the institution of gay marriage.

After representing their positions on the issue of standing, the parties launched into the hearing on the merits.

Cooper described marriage as a gendered term; akin to the affiliations of fatherhood and motherhood with males and females respectively.

When Sotomayor pressed him on the issue of whether gay individuals are deprived other rights afforded to the general citizenry, Cooper turned the focus to the imperative of procreation, or – in his words – the “State 's interest and society's interest in what we have framed as responsible procreation.” He contended that homosexual couples are not similarly situated to straight couples in terms of procreation.

He added that, “redefining marriage will have real-world consequences, and that it is impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be,” adding that the court should consider the California voter in 2008 naïve to the fact that his choice could impact “this age-old bedrock social institution.”

Justice Scalia then considered the slippery slope element of acceptance of gay marriage, noting that with gay marriage may come gay adoption. To this Justice Ginsburg retorted that California already allows gay couples to adopt.

Justice Kagan chimed in with the point that couples over the age of 55 would have a tough time fulfilling the procreation element as well. To this point Cooper leaned on the hypothetical possibility that such a couple might be able to conceive.

Justice Ginsburg noted on this point that prisoners are allowed to marry, even if incarceration hinders the capacity to procreate. To this Cooper responded that in the Supreme Court decision sanctioning prison marriage, the justices had agreed that one factor militating in favor of such a decision was the future prospect that these couples might eventually have the option of procreating.

Olson encapsulated the respondents’ argument as follows: “It walls-off gays and lesbians from marriage, the most important relation in life, according to this Court, thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal, and not okay.”

Chief Justice Roberts argued in due course that the institution of marriage has developed in a way that has excluded same-sex couples, rather than such being the result of intent at any point. In his words: “When the institution of marriage developed historically, people didn't get around and say let's have this institution, but let's keep out homosexuals. The institution developed to serve purposes that, by their nature, didn't include homosexual couples.”

Justice Scalia argued that the Supreme Court’s job isn’t to dictate the law of the future; rather it is to interpret the Constitution which was drafted more than two centuries ago. He wondered, “when did it become unconstitutional to exclude homosexual couples from marriage?”
In closing, Olson quoted Justice Ginsburg: “A prime part of the history of our Constitution is the story of the extension of constitutional rights to people once ignored or excluded."

A decision on the case is not expected for several months.