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Religious Tolerance logo

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

Part 2: 2013-MAR-26: The U.S. Supreme Court heard
oral arguments on the constitutionality of Proposition 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-26: Response by political/judicial commentators:

Political commentators frequently try to guess the probable outcome of the case by observing questions asked by the Supreme Court Justices during the oral arguments. This process didn't work well for this case. The only consensus among observers in this case is that the Justices are conflicted.

A major cause of their anxiety is the pace of social change in the U.S. over SSM:

  • In 1997-MAR, only sixteen years before this hearing, a Gallup Poll showed that 68% of the American population opposed SSM while only 27% approved.

  • In 2010-AUG: Since the 1997 poll, support for SSM has risen close to 2 percentage points per year, while opposition dropped about 1.7 percentage points annually. The national Fox News/Opinion Dynamics  poll of 2010 was the first major poll to definitely show that most American adults support SSM: 52% in favor, and 46% opposed. Many subsequent polls confirmed majority national support for SSM.

  • In the most recent poll, a week before the Supreme Court oral arguments, the Washington Post/ABC national poll showed that 58% were in favor, 36% opposed. The results results even showed that most (52%) Republicans under the age of 50 supported SSM! That is a major milestone. The major groups that are still opposed to SSM have shrunk to three:
    • older Republicans,

    • fundamentalist and other evangelical Christians,

    • and the hierarchy of the Roman Catholic Church.

  • The Republican party's stance of SSM has become a millstone around their neck. They are now scrambling to find a policy that will retain their politically conservative and evangelical Christian bases, without alienating their young adult and middle-aged members.

Dan Balz of the Washington Post wrote:

"If justices on the Supreme Court sounded cautious and tentative as they addressed the issue of same-sex marriage Tuesday, it’s little wonder. Like everyone else in public life, they are operating in the middle of a political whirlwind.

The political and legal systems are caught between past and future. Public opinion has shifted rapidly, and a majority of Americans now back legalizing same-sex marriage. Among those younger than 40, support is overwhelming. The question is when and in what form the future arrives." 1

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Reactions by the Justices of the U.S. Supreme court:

During the 80 minute session:

  • Justice Anthony Kennedy, who has conservative leanings, is often the swing vote in 5:4 decisions. He wondered whether the Court should have accepted the case at all. He said that the court was entering into "uncharted waters." However, the Justices have the famous 1967 case "Loving v. Virginia" to follow. This was the lawsuit that legalized marriages among interracial couples across the country. It has strong parallels to "Hollingsworth v. Perry" today.

  • Justice Kennedy also asked pointed questions about whether the advocacy group that sponsored Prop. 8 and later defended it in court had standing before the Supreme Court. The Governor and Attorney General of California had refused to defend Prop. 8 before the federal District Court and U.S. 9th Circuit Court of Appeals. Thus, Protect Marriage Coalition, the sponsors of Prop. 8 had to took over its defense. He noted that the group was composed of "not just any citizens," but questioned whether they had suffered actual harm as the result of same-sex couples marrying in the state. Being distressed at the possibility of having to live in a state that has marriage equality may not be enough of an involvement to justify giving them standing. After all, most of the Coalition are probably already married to members of the opposite sex. Unmarried Coalition members are probably all heterosexuals and are able to marry persons of the opposite sex at any time.

  • Justice Sonia Sotomayor said that it was the State of California's responsibility to defend Prop. 8 in court as well as laws passed by its legislature. She suggests that private individuals could not establish "... how their injury was separate from everyone else."

  • Lawyer Charles Cooper, who defended the constitutionality of Prop. 8 on behalf of the Protect Marriage Coalition, said before the court:

    "The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will ... refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires ... of adult couples."

    Webmaster's note: In other words, when a man and a woman marry and decide to raise children, their motivation is focused on the children. When two men or two women marry and decide to raise children, their motivation is focused on their own selfish needs. We have never been able to understand this argument. It makes no sense to us; it seems to disagrees with the evidence that we have seen among married same-sex spouses.

    In response to Cooper's statement, Justice Elena Kagak asked:

    "Mr. Cooper, suppose a state said that, because 'we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55.' Would that be constitutional?

    Cooper replied:

    "No, your honor, it would not be constitutional." 2

  • Justice Antonin Scalia, who has voted against the extenson of equal rights for gays and lesbians in previous cases before the U.S. Supreme Court, argued on the basis of children's well being. He said:

    "If you redefine marriage to include same-sex couples, you must permit adoption by same-sex couples, and there's considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not." 3

    Actually, there is little diasgreement among sociologists. All or essentially all major national associations of sociologists, psychiatrists, psychologists, etc. advocate marriage equality.

    However, another way of looking at the child question is to study families with children that are led by same-sex parents. Would the children be better off if their parents were able to marry, and thereby obtain the status of a married couple, feel the stability of marriage, and obtain many state and federal benefits and protections. Or would they be better off if their parents were regarded as legal strangers -- as mere roommates who happen to live in the same accomodation? The answer seems obvious.

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2013-APR-08: A graphic on the Prop. 8 and DOMA cases:

The Human Rights Campaign -- a pro-LGBT advocacy group, has prepared the following graphic outlining what they consider to be the four most likely outcomes of the current two court cases:

"Perry" involves the constitutionality of the Proposition 8 citizen initiative that terminated, at least temporarily, SSM for California in 2008-NOV.

"DOMA" involved the constitutionality of the federal Defense of Marriage Act which prohibits the federal government from granting the same benefits and protectons to loving, committed same-sex couple that they already provide for opposite-sex couples:

Graphic by HRC 4

Not included are the possibilities of the court:

  • Scenario 5: Striking down both the Prop. 8 and Windsor case.

  • Scenario 6: Deciding that the court does not have jurisdiction, and dropping one or both cases.

These are considered unlikely.

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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. Dan Balz, "Parties scramble to come to terms with opinion shift on same-sex marriage," Washington Post, 2013-MAR-26, at:
  2. Bill Mears & Michael Pearson, "Justices appear hesitant as they hear arguments over same-sex marriage." CNN Politics, 2013-MAR-26, at:
  3. "U.S. Supreme Court could dismiss ruling on California gay marriage hearings," Associated Press, 2013-MAR-26, at:
  4. Brian Moulton, "So, the Supreme Court heard oral arguments – what's next?," Human Rights Campaign, 2013-APR-08, at:

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Site navigation:

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

Copyright © 2013 by Ontario Consultants on Religious Tolerance
Original posting: 2013-MAR-26
Latest update: 2013-JUN-29
Author: B.A. Robinson

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