On Tuesday, the Supreme Court hears Hollingsworth v. Perry, the Prop 8 case that will determine whether or not California’s ban on same-sex marriages violates the Constitution. If upheld, same-sex marriage would be left in the hands of California and the individual states to determine whether it should be allowed or banned. If Prop 8 is struck down, same-sex marriages could be legal in all states. The Obama administration suggests the “eight state solution,” where marriage would be granted to the eight states where everything else is currently in place for same-sex couples (like civil unions) except for official recognition of marriage.
There’s a lot to cover in this case, but here’s a run-down of the legal and policy issues at stake:
- Proponents of Prop 8 say that they’re restoring the traditional definition of marriage to mean the union between a man and a woman, and that this arrangement is deeply rooted in society’s function to ensure responsible procreation and child-rearing.
- Opponents of Prop 8 and the Ninth Circuit in San Francisco say that this argument does not have “standing,” or isn't justified by a rational reason. The Circuit rejected the argument that same-sex couples shouldn't be allowed to marry since they can’t have children because if so, the rhetoric would also apply to heterosexual couples that don’t have or want children (and the SCOTUS Blog’s Amy Howe aptly alludes to AP’s Mark Sherman’s point that two of the justices — Thomas and Sotomayor — don’t have children).
- Opponents harken back to whether Prop 8 violates the Equal Protection Clause — a constitutional provision of the Fourteenth Amendment, and a clause that was decisive in historic cases like Dred Scott v. Sanford and Brown v. Board of Education, as well as more recent cases like Romer v. Evans and Lawrence v. Texas. These cases ruled that states cannot deny any person within its jurisdiction the equal protections of laws. In other words, Prop 8 discriminates against same-sex couples and impedes their civil rights to marriage (and a trove of other benefits and rights associated).
- Proponents argue that they accommodated the interests of homosexual couples by granting domestic partnerships (different from same-sex marriage).
- Opponents see this as a modern-day case of “separate but equal.”
- Proponents also argue that Prop 8 was a cautious steppingstone in the gay rights legal timeline on an issue that deals with the 200-years-plus historical institution of marriage.
While the outcome of the case remains to be seen, more people and more political leaders are changing their opinions of gay marriage. Just in the past week, we've seen endorsements from former Secretary of State Hillary Clinton, Claire McCaskill (D-Mo.), as well as earlier this month from Rob Portman (R-Ohio), and 75 prominent “Republican officials and influential thinkers,” including Stephen J. Hadley (one of Bush’s national security advisers) and David A. Stockman (Regan’s first budget director), according to the NYT.
We’ll see how it plays out today, starting at 10 a.m EDT.
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