Supreme Court begins arguments on Prop. 8 gay marriage ban

WASHINGTON — The Supreme Court began hearing arguments Tuesday on whether gays and lesbians have a constitutional right to marry in a California case that could transform the law nationwide.

The argument was scheduled to last only one hour, but it may give clues as to how the justices are leaning. It began shortly after 10 a.m. EDT. About 1 p.m. the court will release audio of the arguments on its website. About an hour later, it will post written transcripts.


Two former Reagan administration lawyers, Charles J. Cooper and Theodore B. Olson, were lined up on opposite sides, with Olson contending an equal right to marry is basic to American liberty and Cooper saying the decision on changing state marriage laws should be left to the voters in each state.

PHOTOS: Supreme Court considers gay marriage

The Obama administration’s top courtroom lawyer will also make a brief presentation to argue that California’s Proposition 8 and its ban on same-sex marriage should be struck down as unjust discrimination against gays and lesbians.

Tuesday’s argument may be complicated by a procedural dispute that could derail a decision. It arose when California’s state attorneys did not appeal after a federal judge in San Francisco struck down Proposition 8. Instead, the private citizens who sponsored the ballot measure, led by Dennis Hollingsworth, filed an appeal. Their opponents now question whether these private citizens have “standing” to defend the measure in federal court because they do not represent the state and they have no personal stake in the outcome.

But the lawyers on both sides would prefer the Supreme Court to rule on the case and decide whether a state’s ban on same-sex marriage is constitutional or not.

Cooper, an Alabama native who is known for his conservative views and gracious manner, will be the first to speak. He was an influential lawyer in the Justice Department of the Reagan era, and when he was head of its office of legal counsel, he hired as his deputy Samuel A. Alito Jr., now one of the nine justices.

Cooper will be given 30 minutes to argue for upholding California’s ban and for allowing the voters of each state to decide for themselves on whether to “redefine” marriage.

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Next up is Olson, a Washington attorney who came from Los Angeles in the early 1980s to join the Reagan Justice Department. Olson, a prominent Republican stalwart and a conservative legal star, joined with Democratic attorney David Boies in 2009 to challenge California’s ban on same-sex marriage. Olson will have 20 minutes to argue that denying marriage to committed gay and lesbian couples denies them the “equal protection of the laws” promised by the Constitution.

U.S. Solicitor Gen. Donald Verrilli Jr., representing the United States and the Obama administration, opted to join Olson’s side as a “friend of the court.” He will have 10 minutes to urge the justices to rule broadly against discrimination based on a person’s sexual orientation.

The high court has at least four options in the case. When they issue their ruling, expected in June, the justices could uphold Proposition 8 and rule gay marriage is not a constitutional right. This would leave the issue in the hands of each state.

The justices could dismiss the appeal on procedural grounds and return the Proposition 8 case to a federal court in San Francisco. This would likely lead to gay marriage becoming legal again in California.

The third option would be for the court to strike down Proposition 8 as unconstitutional, but to do so on a narrow basis. The U.S. 9th Circuit Court of Appeals, for example, said that the voter initiative wrongly took away a right that gays and lesbians had won in the state court. If the justices were to adopt this approach, the decision would affect only California.

FULL COVERAGE: Proposition 8

Finally, the court could rule broadly that denying marriage to committed gay couples is unconstitutional, a decision that could legalize gay marriage nationwide.

The case before the court was nearly a decade in the making. In 2004, several same-sex couples sought marriage licenses in San Francisco and filed a suit in state court. They won a ruling from the California Supreme Court in 2008 that held that denying marriage to gays and lesbians denied them liberty and equality under the state constitution.

Critics of the decision sponsored Proposition 8, which amended the state constitution and limited marriage to a man and woman. That measure won approval in November 2008.

Olson and Boies began their lawsuit in federal court the following year. They won before a federal judge in San Francisco and the 9th Circuit court.

The Supreme Court then agreed to hear the appeal filed by the sponsors of Proposition 8 in a case now known as Hollingsworth vs. Perry.

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