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Hollingsworth v. Perry (formerly Perry v. Schwarzenegger):
California lawsuit challenging constitutionality of Prop. 8

2012-DEC to 2013-FEB:
Speculation on the court's future ruling (Cont'd).
Oral arguments scheduled by the Court.

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Continued from a previous essay.

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In this web site, "SSM" is an acronym for "same-sex marriage."

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Speculation about how SCOTUS will rule in the Prop. 8 case (Cont'd):

  • Justin Snow, at Metro Weekly wrote:

    "Although the Supreme Court could rule narrowly, it could also rule sweepingly in a decision reminiscent to the 1967 decision in Loving v. Virginia, which declared that laws restricting interracial marriage violated both the Due Process Clause and the Equal Protection Clause of the 14th Amendment.

    Should the high court take the sweeping route and make a ruling similar to that by the [federal] district court in 2010, constitutional statutes in states across the country prohibiting same-sex marriage could be rendered void. Such a decision would be not only be revolutionary, but [be] the national declaration of support [that] advocates have long sought.

    Just as easily, though, the court could rule that states have a right to limit marriage [to a union] between a man and a woman, even if states cannot repeal marriage equality once granted. A ruling that the [federal] Constitution does not guarantee same-sex couples the right to marry would be a major setback for a movement that has enjoyed momentous victories in recent years." 1

  • Tony Perkins is the president of the Family Research Council, which has been designated by the Southern Poverty Law Center as a hate group. 2 He seems to anticipate that SCOTUS might rule widely and legalize SSM across the entire U.S. He wrote:

    "Should the Supreme Court decide to overturn the marriage laws of 41 states, the ruling would become even more divisive than the Court's infamous Roe v. Wade decision. Marriage, unlike abortion laws in the 1970s, has been incorporated into the state constitutions of 30 states. Voters in these states will not accept an activist court redefining our most fundamental social institution. ..."

    "The argument that the authors of our Constitution created or even implied a 'right' to redefine 'marriage' lies outside our constitutional law. ..." 3

    In 1967, SCOTUS overturned marriage laws that prohibited interracial marriage in 16 states at a time when about 72% of the public were opposed to such marriages and 48% felt that marrying a person of another race should be prosecuted as a criminal act. The public was able to accommodate the court's decision, even though racial segregation was a "fundamental social institution" in those 16 states. As of late 2012, only about 45% of the public are opposed to same-sex marriage, so the country should be able to handle the change significantly easier. On the other hand, if the court rules that there is no constitutional right to SSM, a larger number of adults would be angered.

    Tony Perkins continues by commenting on the possibility that SCOTUS will rule narrowly on just Prop. 8 in California. He said:

  • "We believe that the people's vote on Proposition 8 should be respected. Activist courts like the U.S. Court of Appeals for the Ninth Circuit should not overturn their decision. We hope the Supreme Court will recognize the right of the people to uphold marriage as it has always been defined." 3

Here, he is referring to the vote on Prop. 8 in 2008-NOV which narrowly passed. However, recent polls show that public opinion in California has reversed. Adults in that state currently support SSM by a large margin. A survey by the Field Research Corporation during 2012-FEB showed that 59% of California adults supports SSM while 34% are opposed. If the citizen initiative were voted upon today, it would pass easily. If SCOTUS were to uphold Prop. 8 as constitutional in 2012-JUN, they would probably go against the wishes of over 60% of California adults.

  • Bill Blum at TruthDig commented that the Hollingsworth v. Perry appeal offers the possibility of gains towards the goal of marriage equality. He wrote that:

    "... the opportunity is circumscribed both by the Supreme Court’s right-wing orientation and the narrow wording of the ... court [of Appeals'] decision in the case. In a 2-1 majority opinion written by the 9th Circuit’s Stephen Reinhardt, perhaps the most consistently liberal appellate judge in the country, the court explicitly sidestepped the question of whether same-sex couples have a fundamental federal constitutional right to marry. Rather, in what may have been an attempt to avoid review altogether by the Roberts court, Reinhardt limited his opinion to California, holding only that Proposition 8 had violated the rights of same-sex married couples there by invalidating a ruling of the state Supreme Court and in the process unlawfully singling out gays and lesbians for discriminatory treatment.

    As most students of constitutional law well know, the Roberts [Supreme] court has been no fan of the 9th [U.S.] Circuit [Court of Appeals] generally or Reinhardt in particular. Last term alone, the high court reversed no less than 17 9th Circuit rulings, more than three times the number of reversals issued for any other circuit court. Overturning Reinhardt’s decision and upholding Proposition 8’s gay marriage ban would be consistent with that trend.

    Doing so, however, would be wrong and not just legally but also for the same profound moral reasons that Lincoln raised in the 1858 debates over popular sovereignty and slavery. When it comes to individual rights and freedoms, principle and human dignity should prevail over politics. Given the positive gay rights record of the [Supreme] court’s perennial swing vote -- Justice Anthony Kennedy, whose majority 2003 opinion in Lawrence v. Virginia overturned that state’s sodomy law -- there is some reason to hope the Supreme Court will go even further than the 9th Circuit and recognize once and forever the basic right of consenting adults across the country to marry the partners of their choice.

    We had to fight a civil war to settle the debate over slavery. All that’s needed this time is some fair and forward thinking from the nation’s top judicial body."

    By "forward thinking" Bill Blum apparently means "liberal thinking." This is in short supply on SCOTUS. As we have mentioned elsewhere, some commentators have said that for decades, whenever a new Justice has been added to that court, they were more conservative than the Justice that they replaced.

  • Mary Bonauto, director of the Civil Rights Projects at Gay and Lesbian Advocates and Defenders (GLAD) said:

    "Mindful of history, I can't help but be concerned."

    She studied three seminal Court rulings that abolished state-backed discrimination. In each case the Court's ruling affected state laws in a relatively small number of states:

    • 1954: Their ruling in Brown v. Board of Education declared laws that had segregated public schools systems in 17 states to be unconstitutional.

    • 1967: Their ruling in Loving v. Virginia declared laws that had banned interracial marriages in 16 contiguous states in the South to be unconstitutional.

    • 2003: Their ruling in Lawrence v. Texas declared laws that had criminalized same-sex sexual behavior in private in 13 states to be unconstitutional. 6

If the court were to legalize SSM across the country in 2013, it would declare unconstitutional laws and constitutional amendments in 41 states. 4

On a positive note, today's Supreme Court justices would probably be more concerned about the opinion of the American public than the number of states that had DOMA laws or constitutional amendments. It is important to realize that in 1967 when the court ruled on interracial marriage, 72% of American adults were opposed to such marriages, and 48% felt that marrying a person of another race should be prosecuted as a criminal act. It was only in 1991 that American adults were evenly split on the subject. In comparison, about 55% of Americans currently favor same-sex marriage (SSM), and the margin between supporters and those rejecting SSM is increasing by a few percentage points per year. Further, this trend should continue, because older teens and young adults overwhelmingly support SSM, while it is seniors who are heavily in opposition. So if the Supreme Court legalized SSM it would be much more in tune with public opinion today than it was in 1967 over interracial marriage.

There is a another factor to consider. The Supreme Court tends to move cautiously. The ruling of the 9th U.S. Circuit Court of Appeals in the Hollingsworth v. Perry case was limited to a special situation in which the courts had legalized SSM and a subsequent citizen initiative had banned SSM. If the Supreme Court rules narrowly in favor of the Court of Appeal's decision, then it would only impact two states: California and Maine. Also, Maine wouldn't even count because on election day in 2012-NOV, the voters in Maine repealed an earlier initiative and made SSMs available once more.

Numerous groups filed amici curiae (legal briefs) with the Supreme Court during 2013-FEB. Some have suggested that the court will widen the scope of the lawsuit to include 9 -- or even all 50 states as it did in Loving v. Virginia.

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2013-JAN-07: Supreme Court schedules oral arguments:

The court has scheduled a hearing of oral arguments in the Hollingsworth v. Perry case for 2013-MAR-22. A one hour time allotment has been scheduled. 5 Their decision is expected during 2013-JUN.

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Justin Snow, "Supreme Court Showdown: With Prop. 8 and DOMA heading for SCOTUS, historic hope mingles with quieter caution," Metro Weekly 2012-DEC-11 at:
  2. From the Winter 2010 issue of the Southern Poverty Law Center's (SPLC) Intelligence Report. The SPLC monitors racist, homophobic, nativist, and other hate groups in the U.S.
  3. "Family Research Council Pleased Supreme Court Will Examine Marriage Cases," Family Research Council press release, 2012-DEC-07, at:
  4. Mark Sherman, "Supreme Court gay marriage cases spark hope, fear," Huffington Post, 2012-DEC-12, at:
  5. "Supreme Court To Hear Gay Marriage Arguments For 2 Days In Late March," Huffington Post, 2013-JUN-07, at:
  6. Tim Harper, "Sodomy laws struck down: Highest U.S. court says Texas statute unconstitutional. Dissenter warns of legalized marriage for homosexuals," Toronto Star, 2003-JUN-27, Page A3.

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Home page > "Hot" topics > Homosexuality > Couples > California > Prop 8 > here

Copyright © 2012 & 2013 by Ontario Consultants on Religious Tolerance
Original posting: 2012-DEC-12
Latest update: 2013-MAR-24
Author: B.A. Robinson

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