Reading the Tea Leaves: First of Two Marriage Cases Heard in the United States Supreme Court

At 10:07 AM (EST) on Tuesday morning, March 26, 2013, the oral arguments in Hollingsworth v Perry were held before the United States Supreme Court. Dennis Hollingsworth and others are supporters of Proposition Eight, a constitutional amendment which defended marriage as between one man and one woman.  It was passed by the majority of the voters of California. Though normally the State of California would have defended Proposition Eight because it was lawfully passed by a majority of Californians, it refused to do so because it did not like the results.

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P>WASHINGTON, DC (Catholic Online) - At 10:07 AM (EST) on Tuesday morning, March 26, 2013, the oral arguments in Hollingsworth v Perry were held before the United States Supreme Court. Dennis Hollingsworth and others are supporters of Proposition Eight, a constitutional amendment which defended marriage as between one man and one woman.  It was passed by the majority of the voters of California.

The petitioners asked the US Supreme Court to review a decision by the 9th Circuit Court of Appeals decision which upheld the unilateral action of a lower federal Court which struck down the constitutional amendment on its own authority, even though it had been lawfully passed by the citizens of California.

Though normally the State of California would have defended Proposition Eight because it was lawfully passed by a majority of Californians, it refused to do so because it did not like the results. The Government of the State of California decided it was more enlightened on this matter than its own citizens. 

So, Attorney Charles Cooper represented those who asked the Court to uphold Proposition 8. In effect, they asked the Court to uphold marriage for what it is, a union between one man and one woman.

Theodore Olsen represented the Respondents, Kristen M Perry and others. They are homosexual and lesbian partners who seek to use this case to change the definition of marriage by judicial fiat. 

The Obama administration entered the case as well, submitting a "friend of the Court" (Amicus) brief which opposed the will of the people of California and asks the Court to enter into the effort to change the definition of marriage by judicial fiat.

The respondents and the federal government argued that Proposition Eight discriminates against homosexual and lesbian couples. They claimed that it fails to recognize some civil right for homosexuals and lesbians to marry.

The Obama administration argued that Proposition Eight is an unconstitutional violation of the 14th amendment to the United States Constitution because it failed to give equal protection to those homosexual and lesbian couples who insist that they have this civil right to marry.

All day Tuesday the media was filled with people seeking to read the tea leaves, parse the comments of the Judges and make their own predictions of the outcome. The opinion is not expected until June. I know it is a futile task. I am a lawyer who spent much of my career in constitutional work. I had the privilege of serving as co-counsel on several cases at the United States Supreme Court.  I was not in the Court for this argument.

However, a talented lawyer who has made numerous successful appearances before the Court - in whom I place a very high degree of confidence - thinks the Court will effectively bypass the matter by holding that the petitioners had no legal standing before the Court. In other words, they had no ground to even present the case under the law. The reason - they were simply citizens affected by the Appellate Courts refusal to implement their will as reflected in Proposition 8 - not the State of California which should have brought the case in the first instance.

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Remember, the State refused to act because they did not agree with the results of the vote. Of course, that raises the question, "Why did the Court even agree to take the case?". The quick answer to support the possibility offered by my source is that the standard for reviewing cases which they will even agree to hear is different than the full review at the hearing. Whether they will find the petitioners had no legal standing and basically return the matter to the prior status - or not - only time will tell. It will be early June before we all know. 

The effect would be to reinstate the opinion of the Ninth Circuit which struck down proposition Eight.  In other words, California would call homosexual and lesbian partnerships - "marriages" -  and grant homosexual and lesbian couples marriage licenses, in spite of what the majority of voters decided. It would have no affect on other States and would leave the entire matter where it was before the Supreme Court agreed to hear the case.

On Wednesday, March 27, 2013, the second marriage case will be heard before the Supreme Court, US v Windsor. The Windsor case involves two women in a lesbian partnership for forty four years. They civilly married in 2007 because Canada granted legal equivalency between homosexual or lesbian partnerships and authentic marriage.

One of the women died and the Federal Government of the United States would not recognize the surviving partner as a spouse for purposes of calculating estate taxes. That is because of the Defense of Marriage Act (DOMA), which protects marriage as what it is, between one man and one woman.

Although it is the Federal law, DOMA has been unilaterally rejected by the Justice Department of the United States under the Obama administration. They refuse to enforce it. It has also been assaulted in the Courts by homosexual equivalency activists. On Wednesday, March 27, 2013, the US Supreme Court will weigh in.

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