Live Blog: Tuesday’s Gay Marriage Arguments at Supreme Court

Photograph by Jewel Samad/AFP via Getty Images

Hollingsworth v. Perry Plaintiffs Kris Perry and Sandy Stier, left, and Paul Katami and Jeff Zarrillo are pictured on the steps of the National Archives in Washington, DC, on March 25, 2013.

5:10 p.m. Today’s coverage of  Hollingsworth v. Perry is ending. Check back with Political Capital early Wednesday morning for our live blog of the oral arguments in U.S. v. Windsor, a challenge to the federal Defense of Marriage Act (DOMA).

4:35 p.m. Nearly lost in the shuffle of tweets was this post-arguments assessment by Theodore Boutrous of Gibson, Dunn & Crutcher, co-counsel to the plaintiffs in the Prop. 8 case.

 

Boutrous recently talked about the sustained coverage and heightened awareness of the Prop. 8 case over the last few years. He spoke with us by phone on the one day in March when he wasn’t on the road and away from his Los Angeles office. Boutrous has been fielding most of the press requests for the plaintiffs’ team and working on addressing public interest in the case.

“We’ve been very sensitive to the fact that we were treading into an area with a lot of political sensitivity, and we had to match our team and public discussion about the case to that reality,” he says. “We live in a time of incredible modes of communication that can affect public views and public discussion but when it’s a case of such national importance, and it’s important to real people across the country, it’s necessary to also engage in the public sphere.

“There have been comparisons to Roe v. Wade but it’s not even close to a comparable situation. Back in 1973, people didn’t know what cases were being argued at the Supreme Court. Here we have a situation in which for four years, there’s been nation-wide and global discussion of the case, of the issues…So the Court’s rulings, when they come out, their decisions are less controversial because the public knows what the possible outcomes are.”

4:20 p.m. Another excellent recap of today’s proceedings comes from Marcia Coyle of the National Law Journal, who offers the following details on the arguments put forth by Solicitor General Donald Verrilli Jr. and the questions he faced:

The Obama Administration’s argument ran into considerable skeptical questions from both wings of the court. Solicitor General Donald Verrilli, Jr. argued that same-sex marriage should be imposed on those states that already grants all of the benefits and duties of that status through their recognition of civil unions–nine states.

“So a state that has made considerable progress has to go all the way, but a state that has made no progress doesn’t have to do anything at all?” asked Justice Ruth Bader Ginsburg, who along with Justice Stephen Breyer, saw that argument as “internally inconsistent.”

But Verrilli said, “We’re not prepared to close the door (on states that might have legitimate interests not yet known).” The Proposition 8 proponents have offered no state interest to justify the exclusion of gay couples when the state already gives them all of the benefits of the marriage status, he argued.

Read the full article here. There is also this report from Coyle’s colleague and fellow Supreme Court reporter, Tony Mauro.

3:40 p.m. Three big, and telling, questions were asked during today’s arguments in Hollingsworth v. Perry, writes Bloomberg BusinessWeek’s Paul Barrett.

I just wonder if the case was properly granted.

The voice of those children is important in this case, don’t you think?

Was not the appellate-court decision in the California case ‘very odd’?

It’s no surprise that all three questions came from Justice Anthony Kennedy, who, as Barrett sees it, “hold[s] the decision in his hands.” That’s in keeping with much of what’s been put forth in the hours after the hearing ended, shortly before 12 p.m. ET on Tuesday. “When the Supreme Court rules, probably by late June, it’s a safe bet that Kennedy’s answers will determine the outcome.”

2:28 pm.Every now and then, a break from reading — the recaps of today’s arguments as well as the previews of tomorrow’s equally important questions in U.S. v. Windsor (Political Capital will also cover Wednesday’s DOMA case)–is in order. There’s a link to a nice artists’s rendering of Ted Olson making the case against Proposition 8 earlier today in this tweet:

1:50 p.m. Major media outlets issued assessments of oral arguments shortly after the proceedings concluded. Here is a selection of some of the coverage:

Supreme Court Justices Conflicted on Gay Marriage CaseThe Washington Post

“Defending the 2008 law that effectively banned same-sex marriage in California, Washington lawyer Charles J. Cooper encountered skeptical questions from at least four justices, including Anthony M. Kennedy, who is considered a potential swing vote in the case.”

Justices Hint at Fears of Acting Too Quickly on Gay MarriageThe New York Times

“In a vivid comment as the Supreme Court conducted the first of two days of arguments on same-sex marriage, Justice Anthony M. Kennedy, often a swing vote in major cases, spoke strongly about the interests of the children of same-sex couples, saying there were an estimated 40,000 such children in California alone. ‘They want their parents to have full recognition,’ Mr. Kennedy said.”

Supreme Court Proposition 8 Case Arguments Cast Doubt On Gay Marriage BanThe Huffington Post

“The justices spent a good deal of time in the first half of the hour examining whether the parties defending Prop. 8 had legal standing, and seemed to cast doubt on whether they did. Chief Justice John Roberts indicated that the case may not reach the central issue of whether gay couples are entitled to marriage, and might fall on issues of standing.”

High Court Hears Arguments on Calif. Gay Marriage BanAssociated Press

“The Supreme Court is raising the prospect that it will find a way out of the case over California’s ban on same-sex marriage without issuing a substantial ruling on whether gays have a right to marry.”

Justices Wary of Broad Ruling Endorsing Gay MarriageReuters

“As the Supreme Court heard arguments on Tuesday on the delicate and divisive issue of gay marriage, Chief Justice John Roberts expressed doubt that California opponents of gay marriage had a right to be heard in federal court.”

Supreme Court Justices Wary of Sweeping Vote on Gay Marriage – Politico

“The country may seem to be in a hurry on same-sex marriage, but not the Supreme Court.”

1:20 p.m. SCOTUSblog’s Lyle Denniston, in his recap of this morning’s arguments in Hollingsworth v. Perry, details the options before members of the Court in this case and includes reactions from the Justices. Justice Kennedy, Denniston writes, “appeared to be troubled about the Court entering ‘uncharted waters,’ on the core issue of who may marry, but at the same time, he also did not look comfortable with any of the other, more limited options. So he openly wondered why the Court had agreed even to hear this case.’”

12:50 p.m. The audio recording of today’s arguments in Hollingsworth v. Perry (Prop. 8) is now available at this link, as is the transcript of the proceedings.

12:40 p.m. Here’s a nice state-by-state look at same-sex marriage laws, from Bloomberg Visual Data reporter @AlexTribou.

12:20 p.m. There’s an abundance of analysis to review. First up is SCOTUSblog founder Tom Goldstein’s take on today’s oral arguments. Goldstein already has predicted how the Justices might vote on the case. It comes down to the question of “standing”:

Several Justices seriously doubt whether the petitioners defending Proposition 8 have “standing” to appeal the district court ruling invalidating the measure. These likely include not only more liberal members but also the Chief Justice. If standing is lacking, the Court would vacate the Ninth Circuit’s decision.

As for the constitutionality of Proposition 8, there is equal division among all the Justices–other than Justice Kennedy –along ideological lines, Goldstein notes. “For the more liberal members of the Court, there was no clarity on how broadly they would rule.”

Read Goldstein’s full report here.

12:00 p.m. Charles Cooper is now addressing reporters. “We believe that Proposition 8 is constitutional and the place for redefining marriage is with the people, not with the courts.”

11:52 a.m. David Boies is now addressing reporters outside the Supreme Court, and cautions people not to read too much into the questions asked by the Justices. Ted Olson says, “the questions might not even reveal how they’re thinking…they put every advocate to the test.” The live feed is being carried by Reuters at this link.

11:39 a.m. With arguments now completed, SCOTUSblog, via its Twitter feed, is predicting that the Supreme Court will neither uphold nor strike down Proposition 8 — “Kennedy thinks it is too soon to rule on #ssm. #prop8 will stay invalidated.”

11:32 a.m. Much of the discussion has centered on the question of the effects on children of having same-sex parents. Justice Antonin Scalia noted that there’s “considerable disagreement” over this question. “Do you know the answer to that, whether it harms or helps the child?”, he said, according to Bloomberg News. “I take no position on whether it’s harmful or not.”

11:28 a.m.

11:20 a.m. From the Wall Street Journal’s live coverage:

Justices Stephen Breyer, Elena Kagan and Ruth Bader Ginsburg dominated the questioning at the end of Mr. Cooper’s argument time. Each of the three justices questioned the argument that same-sex marriage interferes with a traditional goal of marriage: procreation.

11:14 a.m. SCOTUSblog is back with another update from inside the courtroom. Blog founder Tom Goldstein is taking a strong stand, saying there are not five votes to strike down Prop. 8. He was one of the few observers to call the Obamacare cases correctly.

11:04 a.m. Arguments are nearing the one-hour mark. The Court announced on March 19 that audiotapes of today’s arguments will be released in short order, no later than 1 p.m. this afternoon, according to the announcement (via SCOTUSblog). Visit the Court’s website at www.supremecourt.gov to access the materials. (Update 11:10 a.m. – Chief Justice Roberts has allotted a few more minutes to the parties.)

10:59 a.m. Here’s a shot of the plaintiffs in Hollingsworth v. Perry, shortly before the start of oral arguments this morning:

10:57 a.m. The Wall Street Journal has some of the details on Chief Justice John Roberts’s comments during this morning’s oral arguments in Hollingsworth v. Perry:

Chief Justice Roberts questioned whether Mr. Cooper’s clients were any different from any other citizens of California to be able to defend Prop 8, when the state’s elected officials refused to do so. Mr. Cooper argued that the California Supreme Court had argued that the citizens had a vital interest to have the law defended and had agreed his clients could do so, since the state was refusing to defend the initiative approved by voters.

10:54 a.m. Here’s the link to the full Bloomberg News story by Laurie Asseo and Greg Stohr, reporting on Justice Kennedy’s remarks.

10:46 We’re waiting on more details as reporters emerge from the arguments to report on the proceedings. This is one exchange we’ll be looking for more on:

 

10:44 a.m. Bloomberg News’s Laurie Asseo and Greg Stohr report that Justice Anthony Kennedy, in early questioning, “suggested that children of same-sex couples suffer an “immediate legal injury” from California’s ban. ‘They want their parents to have full recognition and status,’ Kennedy said. ‘The voices of those children’ is important, he suggested.”

10:40 a.m. Here’s a BREAKING update from SCOTUSblog’s Twitter feed –

10:25 a.m.

If a history of discrimination were sufficient to justify its perpetual existence, as Proponents argue, our public schools, drinking fountains, and swimming pools would still be segregated by race, our government workplaces and military institutions would still be largely off-limits to one sex–and to gays and lesbians, and marriage would still be unattainable for interracial couples. Yet the Fourteenth Amendment could not tolerate those discriminatory practices, and it similarly does not tolerate the permanent exclusion of gay men, and lesbians from the most important relationship in life.

‘In respect of all civil rights, all citizens are equal before the law.’ Plessy v. Ferguson, 163 U.S. 537, 559 (1896)

–Hollingsworth v. Perry, Brief For Respondents

10:21 a.m.

The arguments this week pose an unusually stark choice among the radically different paths of heroism, restraint, not deciding and minimalism. The lawyers will be offering some highly technical arguments. But the competing analogies, and history’s likely verdict, loom large in the background. — Cass Sunstein, Robert Walmsley Professor at Harvard Law School, writing for Bloomberg View.

10:07 a.m. Bloomberg News is reporting that oral arguments in Hollingsworth v. Texas are underway.

10:00 a.m. The attorneys representing the plaintiffs challenging California’s Proposition 8 have a lot to do with the attention that’s been focused on the case over the past three years–Theodore Olson of Gibson, Dunn & Crutcher and David Boies of Boies, Schiller & Flexner. Legal veterans, both, they were unlikely allies, it seemed, when they first emerged as partners on the case in 2009, given their differing political views. The two had faced each other in Bush v. Gore. But as The American Lawyer reported in “Marriage Brokers,” a March 2011 profile (subscription required) of the lawyers and the case, the pairing was “a culmination of a professional and personal relationship that bloomed over the past decade.”

As Ross Todd reported then, “The case is the most closely watched that either lawyer has handled since their election showdown. And, one way or the other, it will shape their professional legacies.”

Olson, a legendary Supreme Court attorney, now stands before the Justices to argue the case for the plaintiffs.

“Lawyers sometimes get caught up in what they want to accomplish and what their goals are,” he has said. “We represent four people whose lives are in our hands, in a sense. We want them to have their goal. We want them to be married and to be treated as equals in California…We can’t forget that we’re representing human beings.”

9:40 a.m. Who’s arguing the case against same-sex marriage rights?

Charles (Chuck) Cooper, the founder and chairman of Washington, D.C.-based litigation boutique Cooper & Kirk, is the attorney for the sponsors in Hollingsworth v. Perry . He is a champion of conservative causes, the Wall Street Journal notes, “including preserving gun rights and limiting affirmative action and gay rights.”

A graduate of the University of Alabama School of Law, Cooper was a clerk to Supreme Court Justice William Rehnquist (1978-79) and to Judge Paul Roney of the U.S. Court of Appeals for the Fifth Circuit (1977-78).

“Chuck is a traditionalist,” Kenneth Starr told the Wall Street Journal. “[He] has great and abiding respect for traditions embodied in law—a historic position in American jurisprudence.”

9:27 a.m. There are just over 30 minutes to go before the Court opens for business. A procedural note, via SCOTUSblog:

At 10 a.m. on both Tuesday, March 26 and Wednesday, March 27 we expect opinions argued in cases… Following opinions, the Justices will hear oral argument in Hollingsworth v. Perry, a challenge to the constitutionality of California’s ban on same-sex marriage.

SCOTUSblog’s Amy Howe previews the case here.

9:13 a.m. “The Phelps family has arrived,” reports Chris Geidner of BuzzFeed, via Twitpic. Phelps patriarch Fred Phelps, Sr., who heads the Westboro Baptist Church in Topeka, Kansas, is a staunch gay marriage opponent. Follow Geidner’s Twitter stream for frequent photo updates.

9:09 a.m. Lawyers Ted Olson (left) and David Boies are on the way to the courthouse. Olson is arguing against Prop 8 today.

 

And the New York Times’ Adam Liptak reports the reporters are getting restless.

 

 

8:43 a.m. The wait is almost over for everyone standing on line at the Supreme Court this morning. Spotted among the crowd was director Rob Reiner (click here for a photo), as AP legal affairs reporter Mark Sherman noted via Twitter:

Reiner is one of the founders of the American Foundation for Equal Rights and a longtime supporter of same-sex marriage. “I was raised in a political family,” he told the Huffington Postin March of last year. “Civil rights issues were talked about around my kitchen table. People say, ‘Do you remember where you were when President Kennedy died?’ Well, I remember where I was when Medgar Evers died. This was something I was raised in. [Gay rights] is an extension of the civil rights movement. There are basic civil rights denied to people.”

8:20 a.m. A big development in this debate in recent weeks has been the increasing support for gay marriage, notably among Republican lawmakers. As Bloomberg News reports, two Democratic senators have joined the “growing and bipartisan chorus of support” for same-sex marriage. Saying it is the “fair and right thing to do,” Senator Mark Warner of Virginia expressed his support on Monday. Late last week, Senator Claire McCaskill of Missouri became the second sitting U.S. Senator in recent weeks to endorse gay marriage. “I have come to the conclusion that our government should not limit the right to marry based on who you love,” McCaskill wrote on her Tumblr page. (McCaskill’s statement follows an announcement by Republican Senator Rob Portman of Ohio earlier in March that he supports same-sex marriage. Noting that his son, Will, told his parents that he is gay two years ago, Portman admitted his stance “isn’t how I’ve always felt.”)

7:55 a.m. Welcome to Day One of the Supreme Court oral arguments in this week’s landmark gay marriage cases – Hollingsworth v. Perry and U.S. v. Windsor. This is your blog to all the action. Reload this page throughout the day for our latest updates.

We’ll be aggregating the best coverage from across the Bloomberg media universe, as well as from other news outlets, the blogosphere and social media channels. And we’ll do the same on Wednesday in U.S. v. Windsor.

Up first shortly after 10 a.m. ET Tuesday is Hollingsworth v. Perry, in which the court will consider whether there is a Constitutional right to gay marriage. The case stems from California’s Proposition 8, the 2008 ballot initiative that banned same-sex marriage in that state.

Bloomberg’s Greg Stohr has outlined the issues in both cases here. Bloomberg Law’s Lee Pacchia spoke with SCOTUSblog* founder and noted Supreme Court attorney Tom Goldstein – watch the video interview here.

Dimitra Kessenides is an editor and blogger with the multimedia team at Bloomberg Law.

*Bloomberg Law is a sponsor of SCOTUSblog.

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