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Oral Arguments on Same-Sex Marriage at the Supreme Court
Posted by: Claude J. Summers on 03/23/13
Last updated on: 03/24/13
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On March 21, 2013, in very chilly weather, a line began forming in front of the United States Supreme Court. Prospective witnesses to history gathered in hopes of securing scarce tickets to observe the oral arguments in two key cases involving same-sex marriage that will be heard by the Court on March 26 and March 27. Most of us, however, will have to be content with reading and hearing the arguments.

In a nod to the high level of public interest in these cases, the Supreme Court announced on March 19 that it will release, shortly after the arguments are completed, the audiotapes and written transcripts of the hearings. The sound recordings and the transcripts will be available on the Court's website.

The recordings and transcripts of the arguments involving California's Proposition 8 should be available by 1:00 p.m. (Eastern Daylight Time) on Tuesday, March 26; the material regarding the Defense of Marriage Act (DOMA) should be available on March 27 by 2:00 p.m.

The Supreme Court recently issued its "hearing list" for the cases.

Arguments in the Proposition 8 case, now called Hollingsworth v. Perry, will begin at 10:00 a.m. on March 26. One hour has been allotted for argument.

Charles Cooper, the lead attorney for ProtectMarriage.com and the official proponents of Prop 8, will argue in defense of the law's constitutionality. He has been granted 30 minutes. Theodore Olson, representing the American Foundation for Equal Rights and the plaintiffs challenging Proposition 8, will argue that the law is unconstitutional and should be invalidated. He has been granted 20 minutes.

In addition, Solicitor General of the United States Donald Verrilli, Jr., has been granted 10 minutes to present the federal government's position that Proposition 8 should be considered under heightened scrutiny and thus ruled unconstitutional.

In the DOMA case, U.S. v. Windsor, which will be considered on Wednesday, March 27, beginning at 10:00 a.m., argument has been divided into two sections.

The first section, which will last for 50 minutes, will focus on the question of whether the Bipartisan Legal Advisory Group (BLAG) of the United States House of Representatives has the legal authority to defend DOMA since the Executive Branch has declined to do so. These jurisdictional arguments will also consider whether there is a legitimate controversy for the Court to consider, since both the plaintiff in the case (Edie Windsor) and the defendants (the federal government) agree that DOMA is unconstitutional and do not dispute the lower courts' rulings to that effect.

In this first section, Harvard Law professor Vicki Jackson, who was appointed by the Court specifically to argue against standing, will contend both that BLAG lacks standing to defend DOMA and that the Supreme Court has no jurisdiction to hear the case. Deputy Solicitor General Sri Srinivasan will argue on behalf of the federal government that the Court has jurisdiction to hear the case, while Paul D. Clement, who has been hired by BLAG to defend DOMA, will present the case that BLAG has standing to appeal the Second Circuit's ruling in Edie Windsor's favor.

After the argument concerning standing, arguments on the merits of DOMA's constitutionality will commence. Paul Clement has been allocated 30 minutes to argue on behalf of BLAG, while Solicitor General Verrilli will present the federal government's position against the law for ten minutes. Windsor's attorney, Roberta Kaplan, a partner at the New York law firm Paul, Weiss, Rifkind, Wharton & Garrison, has been granted twenty minutes to argue against the constitutionality of DOMA.

In addition to the crucial question of standing in both cases, other issues that are likely to surface in the oral arguments include the following. The interpretation of Romer v. Evans, the landmark 1996 case in which the Supreme Court invalidated a state constitutional amendment enacted by popular vote that prohibited municipalities and state agencies from granting lesbians and gay men protected status, is almost certain to be raised since the Ninth Circuit's opinion invalidating Proposition 8 rests on Romer v. Evans. The question of whether laws affecting gay men and lesbians should be subjected to "heightened scrutiny" or the more deferential status of "rational scrutiny" or perhaps some intermediate level of scrutiny will also be highlighted in the arguments. Also likely to be the subject of disagreement between the parties is whether Proposition 8 and DOMA violate the constitutional principles of "equal protection under the law" and "due process."

It should also be kept in mind that the questions from the Justices are sometimes more significant than the presentations by the attorneys. While the questions may not necessarily indicate the way an individual Justice will ultimately rule, they may signal the issues that will be at the forefront of the Court's deliberations.

Nan Hunter at her blog Hunter of Justice, comments as follows on the questions asked by the Justices: "Most of the time, most of the questions are probing for the weaknesses in whichever argument is being made by either side. These queries don't necessarily indicate how a Justice will vote. A Justice may ask the toughest questions she can think of for the party she (probably) favors, in order to clarify an issue that she knows is bothering another Justice. Occasionally, the questions become almost rhetorical and before you know it, the argument is effectively between Justice X and Justice Y."

Although the arguments will not be televised, some bloggers are planning to "live blog" during the proceedings.

An indispensable source of information about the marriage equality cases is Equality on Trial, the website sponsored by the Courage Campaign. Adam Bink, Jacob Combs, and Scottie Thomaston do an excellent job in covering judicial proceedings concerning marriage equality.

In the video below, Tom Goldstein, founder of Scotusblog, offers a "Viewers guide to Gay Marriage Oral Arguments."

In the following video, from June 2011, Theodore Olson and David Boies, joint counsel in the case challinging Propostion 8 celebrate the 44th anniversary of the Supreme Court's ruling in Loving v. Virginia, which struck down state bans on interracial marriage. They hope that the Supreme Court this year will make a similar ruling in the Proposition 8 and DOMA cases.

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