Supreme Court Hears Arguments on Prop 8, Is Skeptical About Legal Standing

feature image credit Jim Wilson, New York Times

Today was the first day of Supreme Court hearings on cases related to the legality and constitutionality of same-sex marriage. Today, the court heard oral arguments related to Prop 8, and there are a few different ways that the court could potentially respond to those arguments: they could choose to uphold Prop 8 and deny marriage rights to California’s citizens, they could choose to strike down Prop 8 and agree with Judge Walker’s opinion that restricting marriage to heterosexual couples is discriminatory and unconstitutional, or they could not make a decision at all on Prop 8 and leave this issue to be decided at the state level. (ThinkProgress has a good explanation of this.)

friend of autostraddle Jessica Skrebes waits in line outside the court (credit AP Photo/Jacquelyn Martin)

friend of autostraddle Jessica Skrebes waits in line outside the court (credit AP Photo/Jacquelyn Martin)

Although the question of whether one-man-one-woman marriage is discriminatory and/or constitutional is the one most people are interested in, there are other issues at stake with Prop 8 as well. For instance, one of the recurring questions has been about the question of ‘standing’ — whether or not the people who are appealing in favor of Prop 8 even have the legal right to do so, considering their relationship to the case. Back in 2011, the California Supreme Court ruled that Prop 8’s defendants did have standing, but that doesn’t mean the Supreme Court feels the same way. If they don’t think there’s standing, the actual question of the case may not be considered at all.

Even if the court did rule in the most ideal way possible, fully striking down Prop 8 (as Obama’s administration wants them to do), even that leaves plenty of options for how things could play out. A “broad” ruling would mean that defining marriage as between a man and a woman is declared unconstitutional, and the effects of this ruling would have nationwide repercussion. But there could also be a “narrow” ruling, which would mean that the court’s verdict on Prop 8 would apply only to California.

The arguments for Prop 8, made by the original case lawyer Charles Cooper, were fairly familiar and unremarkable. The justices seemed largely skeptical of many of his points, responding to Cooper’s argument that marriage should be linked to biological procreation by asking if that meant states should also outlaw marriage for straight people over the age of 55. (Cooper attempted to roll with the punches, claiming that in that situation “at least one member of the marriage would likely still be fertile,” a suggestion which does not seem to have been taken seriously by the justices.)  A transcript of the full oral arguments on Prop 8 can be found at Politico. Via the Washington Post, the full oral arguments can be heard below. The SCOTUS Blog also has a breakdown of the oral arguments “in plain English” if you’d like a summary to read alongside.

Although an actual ruling on the case won’t come until this summer, and we therefore have no way of knowing what’s actually going to happen with this case, many outlets are speculating on what a ruling may be based on judge’s questions and previous stances on comparable cases. Very generally speaking, many seem to feel that the court may not ultimately choose to decide the merits of the case, due to assessing the defenders of Prop 8 as having less than adequate standing. Justice Roberts observed that “U.S. citizens in general do not have a right to sue to enforce laws they favor” and many of the judges asked pointed questions asking Cooper to justify his participation in the case, which suggests that this is a major issue up for discussion. More frustratingly, other justices suggested that this is “not the right time” to decide the case. (Justice Alito’s reasoning that “gay marriage as a concept is ‘newer than cellphones and the Internet'” is, frankly, so ridiculous that it’s hard to even form commentary on.) Either way, if the court does decide not to rule on this case, it would be frustrating for many who were hoping for an absolute takedown of Prop 8 and hoping that it would have national implications. On the other hand, the consensus of those speculating seems to be that the court would tend more towards a narrow ruling than a broad one, so that may not be a concern that’s on the table after all.

The good news about the justices’ behavior during the oral arguments was that most of the skepticism seemed to be directed at Charles Cooper and the Protect Marriage side, and to the extent that the court seemed unsure or unenthusiastic about moving forward, it was about the scope of the case, not about the subject of marriage equality overall. While some justices, like Scalia, are an almost surefire anti-gay bet, it seems unlikely at this point that the court will uphold Prop 8 and actively perpetuate discrimination. Justices seem much more concerned with whether or not Cooper’s side has legal standing than with whether two moms getting married will somehow ruin their child’s life.

Ultimately, however, we have no way of knowing how this issue will play out. Pro-equality lawyer Ted Olson says that “based on the questions the justices asked, [he] has no idea” what the final ruling will be, and we’ll continue to not know until probably June. Tomorrow, the court will hear arguments on DOMA, which is a related but different issue – Prop 8 speaks to whether or not it’s legal to explicitly ban marriage rights for gay people within a state, while DOMA speaks more to whether it’s legal to federally define marriage rights in such a way that they exclude gay people, and therefore the rulings on each case will have different implications. We’ll be back here tomorrow to talk about DOMA, and then anxiously waiting until June to hear the ruling!

Before you go! Autostraddle runs on the reader support of our AF+ Members. If this article meant something to you today — if it informed you or made you smile or feel seen, will you consider joining AF and supporting the people who make this queer media site possible?

Join AF+!


Originally from Boston, MA, Rachel now lives in the Midwest. Topics dear to her heart include bisexuality, The X-Files and tacos. Her favorite Ciara video is probably "Ride," but if you're only going to watch one, she recommends "Like A Boy." You can follow her on twitter and instagram.

Rachel has written 1142 articles for us.


  1. “at least one member of the marriage would likely still be fertile”

    If the point is whether or not they’re FERTILE and not whether or not they can actually reproduce together, um, doesn’t that cover most same-sex couples as well? Dumb dumb dumb.

    • The idea is that marriage encourages monogamy, so the one fertile spouse is encouraged not to cheat on their partner and possibly have a kid outside of their marriage.
      The especially dumb point about this argument, which no one brought up, is that someone in a same-sex relationship could still cheat on their partner with someone of the opposite sex. Have none of the lawyers or justices involved ever heard of bisexual people? Did they not see The Kids Are All Right??

      • Yeah, true. But it doesn’t surprise me that homophobes are engaging in bisexual erasure. Even people who know better do it all the time!

  2. This is slightly off-topic but I need to share this with a community, and I feel it’s on-topic enough to share here. Plus hopefully it will give everyone good feelings.

    Anyone who’s got Facebook and Twitter has seen (or posted) all of the red HRC logo images all day, yes? “Wear red on March 26 in support of marriage equality” etc etc.

    Last night while my mom was surfing Facebook and I was enthralled by Rachel Maddow, she said, “Ashley’s profile picture is that one logo [HRC] but it’s red. Why is it red?” I explained why.

    “…okay, how do I make that my picture too?”

  3. “Justice Roberts observed that “U.S. citizens in general do not have a right to sue to enforce laws they favor” and many of the judges asked pointed questions asking Cooper to justify his participation in the case, which suggests that this is a major issue up for discussion.”

    I don’t understand, can someone explain why this matters

    • I think this is referring to the standing issue. The Court wants to know whether the case was brought by the right people. This is an issue for the people who support Proposition 8 because normally a state is supposed to defend its own laws, but California declined to do so here. So instead, the people Mr. Cooper represents tried to step in and defend it themselves. The Supreme Court is asking whether they are capable of doing so. If they aren’t, there isn’t really a proper dispute before the court because it lacks a contentious party. This could prevent the Court from moving on to discussing whether Proposition 8 is discriminatory.

      • but why does any of that matter? sorry to be stupid, I really don’t get it haha, thanks for responding

        • Maybe someone who knows more will correct me, but my understanding is that cases have to meet a certain set of standards for the supreme court to weigh in on them. If there’s no one who has standing supporting Prop 8, then the case doesn’t meet those standards and the court won’t issue a judgement.

        • If I understand correctly, “standing” refers to whether the people bringing a case to court have an actual stake in the matter… and in this case they really don’t because surprise! marriage equality doesn’t hurt straight people! I don’t know exactly how it works, but I think the reason for the concept of “standing” is to try to limit lawsuits that serve no real purpose other than to make some political point.

          • yes, this. very simply, standing means you’ve got a right or property interest that’s being threatened or injured as the result of a law, and the federal courts can do something about it (declare the law that’s denying your rights invalid, etc.) Since “we don’t like gays getting married” is an opinion and not the denial of a right (homophobes can still get married, however much they resent that gay people might be able to), what the hell are they doing in front of the Supreme Court?

            I’d love Prop. 8 to be struck down too, but it may not get that far. I’m not sure the Supreme Court will want to recognize the proponents of state ballot initiatives as having constitutional standing to drag shit through the federal courts when even the state officials refuse to defend it. I’m from California and we’ve had quite a few howlers get passed over the years; a ruling like that might be open Pandora’s Box.

            But the Supreme Court can do whatever it wants, and justify it in any way imaginable (the trash that was Bush v. Gore). Maybe they’ll find some trickstery way to do us a good turn.

  4. The anti-gay lawyer is so dumb. My favorite part was when he said that gay marriage has only been legal in Massachusetts for four years. And also when he seemed to imply that you can reproduce if half of a couple is fertile.

  5. I dunno, in Canada, same-sex marriage was made legal before I ever owned a cellphone so what does that say, Justice Alito!?!?

  6. I’m not surprised that standing is a big issue, the pro-Prop 8 people have always been on shaky ground when it comes to standing. But I’m trying not to get to worked up about it since it’ll be months before we get their decision.

  7. “More frustratingly, other justices suggested that this is “not the right time” to decide the case.”
    Please inform me when the right time is because last I checked, it’s currently 2013.

    This reminds me of gun control legislation – Columbine was “too soon.” The day after Aurora was “too soon.” The month after Sandy Hook was “too soon.” Let me know when it’s time, because until then the same shit is going to happen and don’t act surprised when it does.

    • From what I understand, some justices worry that ruling before a large part of the country is on board could have the backlash effect that Roe v. Wade had: it galvanizes a very conservative block to be very activist on this issue they feel was imposed on them by liberal elites.

      HOWEVER, I think this is complete bullshit as a reasoning. If we waited until every state would vote for civil rights, many states would still have legally enforced racial segregation (I live in one of them). Further, rights are rights no matter whether a majority thinks they are.

  8. Oakley COS062 This kind of Oakley sunglasses are designed for ladies with class. These people have a good eye-catching design. The navigator form of this Oakley 9362/S is commonly the most used brand among women. The edges in the glasses are mounted with anchoring screws. In contrast, this glasses types can be purchased in two shades. They’re Brown lightly and Ruthenium. These shades produce a statement on earth of favor. You’ll be able to don these glasses to realize a feminine look.

Comments are closed.