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Supreme Court To Hear Historic Arguments On Same-Sex Marriage

Edward Loera |
March 25, 2013 | 3:16 p.m. PDT

Staff Reporter

(TexasGOPvote.com, Creative Commons)
(TexasGOPvote.com, Creative Commons)
The United States Supreme Court will hear oral arguments over the constitutionality of California’s Proposition 8, the proposition banning same-sex marriage in the state, on Tuesday.

Hollingsworth v. Perry has the potential to possibly overturn existing bans on gay marriage throughout the nation.

The case involves two gay and lesbian couples who were denied marriage licenses in the state of California in 2009 following the passage of Prop 8. Theodore Olson and David Boies, two lawyers who represented opposing parties in the Supreme Court’s Bush v Gore decision, joined forces to represent these two couples and challenge the constitutionality of California’s state ban on same-sex marriage.

On August 4th, 2010,  Federal District Court Judge Vaughn Walker ruled in favor of the plaintiffs, finding that California’s ban on same-sex marriage violated same-sex couples their Equal Protection and Due Process rights.

This case was then appealed to the Ninth Circuit Court of Appeals, where the court ruled in a 2-1 decision for gay marriage. The court made a similar decision to Walker’s decision, although the decision was made on narrower grounds.

On December 7th, 2012, the Supreme Court granted a Writ of Certiorari and allowed the court to review the case and notify both sides to prepare for oral arguments.

Multiple arguments for same-sex marriage are possible for tomorrow's proceedings. The constitutionality of the ban could be decided on the equal protections and due process clause that the initial case was decided on. Additionally, the case could be determined on a strict scrutiny basis, in which the court would decide that same-sex individuals are a class of people commonly discriminated against and therefore should not have their right to marriage deprived from them.

In an interview with Meet the Press, attorney Boies talked about the possible arguments they will make in front of the Supreme Court. Boies said that the court would decide on whether someone could be deprived of their right to marry on the basis of their sexuality. He said that the court has already determined that marriage is a fundamental right in other cases and believes that same-sex couples right to marry is “a basic civil rights issue.”

Although many would believe that this case offers a strong legal basis for overturning the ban on same-sex marriage, the court could defer judgment on the matter if they find that the procedural requirement of standing -- where it must be determined that the party challenging the case is the appropriate party to bring the case forward -- was not met.

Individuals watching the case have repeatedly said that the case is likely to be decided on a 5-4 decision. People have looked to Justice Kennedy, who is considered the swing vote on the bench, to decide the fate of this case.

A justice’s ultimate decision can never be definitively expected. However, history suggests Kennedy will rule against the Prop 8 ban on same-sex marriage. In both Romer v. Evans and Lawrence v. Texas, Kennedy ruled in favor of gay rights, a promising sign for the plaintiffs.

The court may choose to take several courses of action when deciding on the case. If the court rules in favor of a state’s right to decide on same-sex marriage and uphold Prop 8, then the ban on same-sex marriage in California would remain in place.

However, if the court rules against the ban on same-sex marriage, multiple results may take place. The court may decide to overturn all state bans on same-sex marriage. Conversely, the court may choose to only overturn the ban on same-sex marriage in California where the proposition was passed. This, though, may give other states the vehicle through which they may overturn their individual bans on same-sex marriage.

Interestingly enough, the politics on gay marriage in the nation has pivoted towards supporting the right of same-sex couples to marry. President Obama became the first sitting President to publically support same-sex marriage. Even more recently, a group of 80 prominent Republican Party members have signed an amicus brief supporting same-sex individual’s right to marry.

An even greater indicator of the support for same-sex couples comes from a Washington Post/ABC New Poll that found that 58% of Americans now support marriage rights for same-sex couples, while only 36% of Americans oppose same-sex marriage. This is significant considering that as recently as 2003, only 37% of Americans supported gay marriage, while 57% of Americans opposed it. Support is even greater amongst millenials, where a Pew Research poll found support for same-sex marriage came in at 70%.

Vincent Vigil, the director of the USC LGBT Student Resource Center, does not feel that the increased public support for gay marriage will have much bearing on the outcome of the case. However, Vigil said that the increased support for same-sex marriage is “in general a good sign of the increased support for LGBT people.”

Vigil is hopeful that the court will rule in favor of gay marriage, pointing to Loving v. Virginia in which the court ruled in favor of interracial marriage. Moreover, Vigil is excited that a ruling in favor of gay marriage by the court would coincide with increased public support for same-sex marriage, saying that when people are in support of change, then the change is truly significant.

Dawson Ray, a freshman at USC studying Biology and East Asian Languages and Cultures, is hopeful that the Supreme Court will rule in favor of gay marriage. Until recently, Dawson feared that the court would make a split party decision with Kennedy being the toss-up. But according to Dawson, “what's given me a lot of hope in the last few months is the friend of the court brief that Republicans in support of same-sex marriage filed recently.”

This decision will be personal to Dawson. “Someday I want to be able to marry the man I love. I should have to worry about my parents and friends accepting his and my relationship; I should not have to worry about the nation accepting it.”

The court is expected to make a decision sometime in late June.

Reach Staff Reporter Edward Loera here and follow him on Twitter here.



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