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Religious Tolerance logo

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

2013-MAR: Speculation on how the
U.S. Supreme Court will rule on Prop. 8

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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."

"LGBT" is an acronym for "Lesbians, Gays, Bisexuals, Transgender persons and Transsexuals."

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2013-MAR-22: The Advocate considers the Supreme Court's options in the Proposition 8 lawsuit:

The Advocate is one of the leading Pro-LGBT publications and organizations.

As mentioned elsewhere on this site, the U.S. Supreme Court received amicus curiae (legal briefs) from various interested parties who argued different positions on this lawsuit during 2003-FEB. The court will hear oral arguments on MAR-26, and is expected to deliver its ruling in late June. The Advocate suggests that there are four main possible court decisions:

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  • Zero state ruling: They could find Proposition 8 constitutional and thus binding on the Government of California. Constitutional law scholar Geoffrey Stone, who is a professor of law at the University of Chicago, feels that this is not really an option. He said:

    "I think there’s zero chance of the court doing anything harmful to the cause of same-sex marriage."

    He predicts that the companion case, Windsor v. United States will also be decided in favor of SSM. This is the Defense of Marriage Act (DOMA) which prohibits the federal government from including same-sex married couples in federal tax, immigration, Social Security and other programs; they total about 1,140 benefits and protections. Stone also feels that the U.S. Supreme Court will uphold the decision of the 2nd U.S. Court of Appeals and declare the Defense of Marriage Act to be unconstitutional. He predicts that Windsor will be overturned:

    "Certainly [by a vote of the Justices that is] 5-4, maybe 6-3."

    Conventional wisdom predicts that:

    • At least three of the conservative Justices on the Supreme Court -- strict constructionists appointed by Republican presidents --will vote to uphold Prop. 8. They are Justices Alito, Scalia, and Thomas.

    • All four of the liberal Justices on the Court, Justices Breyer, Ginsberg, Kagan, and Sotomayor, -- all appointed by Democratic presidents -- will vote in favor of SSM.

    • Chief Justice Roberts could possible vote for SSM.

    • Justice Kennedy is often referred to as a swing vote. He was the author of the majority decisions that overturned anti-sodomy laws in Lawrence v. Texas, and declared Amendment 2 to the Colorado Constitution unconstitutional. That Amendment prohibited cities, towns, and counties from passing bylaws protecting gay and lesbian rights. He is regarded as leaning towards declaring Prop. 8 unconstitutional.

If Professor Stone is wrong, and Prop. 8 were to be found to be constitutional, then LGBT groups in California would undoubtedly raise a new Proposition to repeal Prop. 8. It would probably be held on Election Day in 2014-NOV. This would attempt to restore access to marriage to California's loving, committed same-sex couples. With support for SSM leading opposition currently by a ratio of almost two to one, a new Proposition would almost certainly pass and marriage equality would be restored to the state. That would result in 11 U.S. political jurisdictions -- the District of Columbia and ten states -- that will have given access to marriage to all couples -- opposite-sex and same-sex.

However, this leaves at least three other outcomes for which there is a reasonable chance that the Court might rule.

  • One state ruling: The 9th Circuit Court of Appeals narrowed the scope of Hollingsworth v. Perry so that their decision would only apply where same-sex couples were able to marry, and then this right was taken away by a citizen initiative -- Prop. 8 in this case. The U.S. Supreme Court might simply uphold this ruling. Prop. 8 would then be declared unconstitutional, and same-sex couples could marry once more in California. It might also prevent a similar sequence of events in one or more future states if they followed the same sequence as California did in 2008.

  • Nine state solution: The Advocate suggests that the Court might agree with the brief of the U.S. Solicitor General. It argued that California and seven other states -- Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island -- already have legalized civil unions or domestic partnerships. The brief concluded that state governments have no legitimate interest in withholding the title of marriage from same-sex couples because they had already granted the all the rights of marriage to these couples, except the right to call their relationship a marriage. That logic would also apply to a ninth state, Colorado, which legalized civil unions on 2013-MAR-20. The nine state solution would see SSM being made available in a total of 19 jurisdictions: the District of Columbia and 18 states.

  • 50 state solution: This is the ultimate ruling that all or essentially all LGBT groups are aiming for. It would be a replication of a previous Supreme Court decision: Loving v. Virginia in 1967. This is the ruling that legalized interracial marriage. The 50 state solution would declare the constitutional right of all couples -- both same-sex and opposite-sex -- to marry. It would probably be based on the 14th Amendment to the U.S. Constitution that requires the federal and state governments to treat all Americans equally.

Stone estimates an 80% chance for either the nine state or the one state ruling to win, about 20% chance for the 50 state ruling, and no chance that Prop. 8 would be found constitutional. He emphasizes the affect of public opinion on the court's decision. He said that support for SSM has:

"... basically gone a slope upward to the point where now a majority of Americans think it’s time to recognize same-sex marriage."

Two major national polls in 2013 have found that 54% to 58% of American adults favor SSM. A California Field Poll shows 61% of California voters favor SSM.

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Jenny Pizer, Senior Counsel and Director of Lambda Legal's Law and Policy Project, agrees with most civil rights advocates that the vote will be narrow. She sees the one state ruling as being the most likely.

Kerry Eleveld of The Advocate wrote:

"Pizer, who helped author a brief arguing for the nine-state solution, says the question of how narrow or broad to go is something the California Supreme Court originally faced when it first took on the question of same-sex marriage. She recalls the court’s chief justice, Ron George, talking about the institutional role of the court and its responsibility to get things right constitutionally but to also have the population view the institution as a place from which one can expect justice.

'And that means thinking about where society is,' Pizer says of the dilemma. 'There’s a reality that we are committed to high principles and a reality that people hold very different views about what those principles mean. I think this is a Supreme Court comprised of a majority of individuals who are concerned about the reputation of the court and the view that the court cannot do its job well if it becomes the object of too much political objection'."

Speculation on whether the court will decide on a 0, 1, 9, or 50 state solution in Hollingsworth v. Perry will only be ended when the U.S. Supreme Court hands down its verdict. That is expected during late 2013-JUN.

However, all of the above depends upon the Supreme Court ruling that all parties to the case have "standing" to be involved in the case. In federal courts, this requires that standing involves some form of personal or direct injury. The same-sex couples who launched the lawsuit in federal District Court would certainly appear to have standing because they have been refused access to marriage. However they are opposed by Protect Marriage, 3 a small group of religious and social conservatives who want Prop. 8 declared constitutional, and the ban on SSM continued. Some might argue that they would not suffer injury if marriage equality was attained in California. Being opposed to SSM, none of them would want to marry a person of the same sex. They would certainly be unhappy with the result, but this might not be enough to justify them having standing.

The question of standing will be the first topic to be dealt with by the Court. If they are determined to lack standing, then the whole process will grind to a stop. 4

All of which makes one consider the ancient Chinese saying/curse: "May you live in interesting times."

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This topic continues in the next essay with the oral arguments before the Supreme Court

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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. Kerry Eleveld, "The Supreme Court’s Middle Option: A Nine-State Solution," The Advocate, 2013-MAR-22, at:
  2. Brian Gallagher & David Boies, "Lawyer expects Supreme Court to uphold gay marriage," USA Today, 2013-MAR-13, at:
  3. Project Marriage's web site is at:
  4. Ari Ezra Waldman, "What to watch for: 'Standing' in the Supreme Court Prop 8 case..." 2013-MAR-22, at:

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

Copyright © 2013 to 2017 by Ontario Consultants on Religious Tolerance
Original posting: 2013-MAR-23
Latest update: 2017-JAN-22
Author: B.A. Robinson

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