Gay Marriage Cases

    The Supreme Court of the United States


© 2013 All rights reserved.


   On this day, The Supreme Court hears oral arguments in HOLLINGSWORTH v. PERRY.  The case determines whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.

   Seated here with Respondents are: Adam Umhoefer (American foundation for Equal Rights), Michelle & Rob Reiner, Chad Griffin (Human Rights Campaign). Behind them: Kris Perry, Chris Katami, Jeff Zarillo.

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   SOTOMAYOR: “Mr. Olson, I think that you're not answering the fundamental fear.  The amici brief that sets forth this test of fiduciary duty doesn't quite either. The assumption is that there are not executive officials who want to defend the law. They don't like it. No one's going to do that. So how do you get the law defended in that situation? “


               March 26-27, 2013

   Attorney CHARLES COOPER (Cooper & Kirk) argues that:  “The question before this Court is whether the Constitution puts a stop to that ongoing democratic debate and answers this question for all 50 States.”

   Attorney for Respondent, TED OLSON (Gibson Dunn). He listens to Cooper insist that if our Constitution forecloses debate on the legality of gay marriage, “It does so only if the Respondents are correct that no rational, thoughtful person of goodwill could possibly disagree with them, in good faith, on this agonizingly difficult issue. “

   COOPER continues: “The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes and it will refocus, refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples. “

“We are saying the interest in marriage

and the State's interest and society's interest in what we have framed as responsible

procreation is vital, but at bottom, with respect to those interests, our submission is that same-sex couples and opposite-sex couples are simply not similarly situated.“

   HOLLINGSWORTH v. PERRY also directs the attorneys to argue whether the Petitioners have legal standing under Article, Section 2 of the Constitution to present this case.

   “Mr. Cooper, you are opposing a judgment that applies to California only, not to all of the States.”

   Hollingsworth v. Perry questions whether the official sponsors of California’s Proposition 8, (a ballot initiative) can legally appeal a court’s decision not to force state officials to enforce the measure, approved by voters.  In 2010, Judge Vaughn Walker ruled Prop 8 violated equal protection clauses of the 14th Amendment, saying there was “no rational basis” for refusing marriage rights to same sex couples. The sponsors of Prop 8 appealed to the 9th Circuit Court of Appeals, who ruled against them on the same grounds.

  COOPER:  “Society's interest in responsible procreation isn't just with respect to the procreative capacities of the couple itself. The marital norm, which imposes the obligations of fidelity and monogamy, Your Honor, advances the interests in responsible procreation by making it more likely that neither party, including the fertile party to that -

   JUSTICE SCALIA interrupts: “I suppose we could have a questionnaire at the marriage desk when people come in to get the marriage -- you know, are you fertile or are you not fertile?” 


   SCALIA:  “I suspect this Court would hold that to be an unconstitutional invasion of privacy, don't you think? “

   JUSTICE KAGAN to Cooper: “ I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.”   (Laughter.)

   TED OLSON:  “I thought that it would be important for this Court to have Proposition 8 put in context, what it does. It walls-off gays and lesbians from marriage, the most important relation in life, according to this Court, thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal, and not okay.”

TED OLSON:  “This is a measure that walls off the institution of marriage, which is not society's right. It's an individual right that this Court again and again and again has said the right to get married, the right to have the relationship of marriage is a personal right. It's a part of the right

of privacy, association, liberty, and the pursuit of happiness. In the cases in which you've described the right to get married under the Constitution, you've described it as marriage, procreation, family, other

things like that. So the procreation aspect, the responsibility or ability or interest in procreation is not a part of the right to get married.”

   Co-Counsels for Respondent, Ted Boutrous and David Boies, hear Chief Justice Roberts state:  “When the institution of marriage developed historically, people

didn't get around and say let's have this institution, let's keep out homosexuals. The institution developed to serve purposes that, by their nature, didn't include homosexual couples.”

JUSTICE KENNEDY:  “The problem -- the problem with the case is that you're really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that metaphor, there's a wonderful destination, it is a cliff. Whatever that was.


   “But you're doing so in a case where the opinion is very narrow. Basically that once the State goes halfway, it has to go all the way or 70 percent of the way, and you're doing so in a case where there's a substantial question on -­ on standing. I just wonder if the case was properly granted.”

TED OLSON:  “Oh, the case was certainly properly granted, Your Honor. I mean, there was a full trial of all of these issues... The Ninth Circuit looked at it and decided because of your decision on the Romer case -- this Court's decision on the Romer case, that it could be decided on the narrower issue, but it certainly was an appropriate case to grant.”

   Rob Reiner and Chad Griffin hear TED OLSON: “And those issues that I've been describing are certainly fundamental to the case. And I don't want to abuse the Court's indulgence. You suggested that this is uncharted waters. It was uncharted waters when this Court, in 1967, in the Loving decision said that interracial prohibitions on interracial marriages, which still existed in 16 States, were unconstitutional.”

   TED OLSON: “I respectfully submit that we've learned to understand more about sexual orientation and what it means to individuals.”

     Jeff Zarillo and Chris Kattami hear TED OLSON conclude: “ I guess the language that Justice Ginsburg used at the closing of the VMI case is an important thing, it resonates with me, ‘A prime part of the history of our Constitution is the story of the extension of constitutional rights to people once ignored or excluded.’"

   Ted Olson hears his co-counsel, Solicitor General DONALD VERRILLI say: “We are not taking the position that (same-sex marriage) is required throughout the country. We think that that ought to be left open for a future adjudication in other States that don't have the situation California has.... The Equal Protection Clause forbids the exclusion of same-sex marriage and it's an open question otherwise.”

  GENERAL VERRILLI:  “I think what Proposition 8 does is deny the long-term stabilizing effect that marriage brings. That's the argument for marriage. There are 37,000 children in same-sex families in California now. Their parents cannot marry and that has effects on them in the here and now. A stabilizing effect is not there. When they go to school, they don't have parents like everybody else's parents. That's a real effect, a real cost in the here and now.”

   Clockwise:  Sandy Stier, Kris Perry, Adam Umhoefer, Chad Griffin hear GENERAL VERRILLI conclude:  “I do think this is significant, that the principal argument in 1967, with respect to Loving and that the Commonwealth of Virginia advanced was, well, the social science is still uncertain about how biracial children will fare in this world, and so you ought to apply rational basis scrutiny and wait. And I think the Court recognized that there is a cost to waiting and that that has got to be part of the equal protection calculus. I do think that's quite fundamental.”

    The United States v. Windsor


March 27, 2013

   VICKIE JACKSON (for Court appointed amicus curiae): “Mr. Chief Justice, and may it please the Court: There is no justiciable case before this Court. Petitioner, the United States, does not ask this Court to redress the injuries it asserts. The House of Representatives' Bipartisan Legal Advisory Group, the BLAG, which does seek redress in the form of reversal, asserts no judicially cognizable injury. While it is natural to want to reach the merits of such a significant issue, as in Raines v. Byrd, this natural urge must be put aside because however important the constitutional question, Article III prevents its decision here and requires this Court to await another case, another day, to decide the


   The issue being argued is whether Section 3 of DOMA (Defense of Marriage Act) violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.

   Also, the attorneys argue whether the Executive Branch’s agreement with the lower courts that DOMA is unconstitutional deprives the Supreme Court of jurisdiction, and whether a legal advisory group in the U.S. House of Representatives has Article III standing in this case.

   CHIEF JUSTICE ROBERTS to Vickie Jackson:  “I would have thought your answer would be that the Executive's obligation to execute the law includes the obligation to execute the law consistent with the Constitution. And if he has made a determination that executing the law by enforcing the terms is unconstitutional, I don't see why he doesn't have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we'll wait till the Supreme Court tells us we have no choice.”

     SRI SRINIVASAN (Justice Department) hears Vickie Jackson argue: “Your Honor, I do not agree that the injuries alleged by the United States should be cognizable by the Article III courts because those injuries are exactly what it asked the courts below to -- to produce. But even if we treat the injuries as sufficiently alleged, Article III requires Official that the party complaining of injury ask the court to remedy that injury. And that's a very important requirement, I think, under Article III for several reasons: The idea of the case or controversy

imitation, as I understand it, is part of a broader separation of powers picture, to make sure the Federal courts perform their proper role. Their proper role is

the redress of injury. And it is the need to redress injury in ordinary litigation that justifies judicial review of constitutional issues.”



   JUSTICE KENNEDY questions Sri Srinivasan:  “Let me ask you, suppose that constitutional scholars have grave doubts about the practice of the President signing a bill, but saying that he thinks it's unconstitutional -- what do you call it, signing statements or something like that.”

   JUSTICE KENNEDY:  “It seems to me that if we adopt your position that that would ratify and confirm and encourage that questionable practice because if the President thinks the law is unconstitutional he shouldn't sign it, according to some views. And that's a lot like what you're arguing here.  It's very troubling.”

   JUSTICE ALITO to Roberta Kaplan: “Let me get to the question I asked Mr. Clement. It just gets rid of the word ‘marriage,’ takes it out of the U.S. Code completely. Substitutes something else, and defines it as same-sex -- to include same-sex couples. Surely it could do that.

   MS. KAPLAN: Yes. That would not be based on the State's --

   JUSTICE ALITO: So it's just the word ‘marriage’? And it's just the fact that they use this term "marriage"?

   MS. KAPLAN: Well, that's what the Federal government has always chosen to do. And that's the way the Federal law is structured, and it's always been structured for 200 years based on the State police power to define who's married. The Federal government, I presume, could decide to change that if it wanted.”

   JUSTICE GINSBURG:  “Rational basis, Mr. Clement -- is a problem in your briefing. You seem to say and you repeat it today that there is three tiers, and if you get into rational basis, then it's anything goes. But the history of this Court is, in the very first gender discrimination case, Reed v. Reed, the Court did something it had never done in the history of the country under rational basis. There was no intermediate tier then. It was rational basis.”

   JUSTICE BREYER to Roberta Kaplan:  “The argument that I heard (from Paul Clement) was, ‘Look, the Federal government needs a uniform rule.

There has been this uniform one man, one woman rule for several hundred years or whatever, and there's a revolution going on in the States. We either adopt the resolution -- the revolution or push it along a little, or we stay out of it.’ And I think Mr. Clement was saying, ‘Well, we've decided to stay out of it. And the way to stay out of it is to go with the traditional thing.’ I mean, that -- that's an argument. So your answer to that argument is what?

   MS. KAPLAN: I think it's an incorrect argument, Justice Breyer, for the --

   JUSTICE BREYER: I understand you do, I'd like to know the reason.


   MS. KAPLAN:  Of course. Congress did not stay out of it. Section 3 of DOMA is not staying out of it. Section 3 of DOMA is stopping the recognition by the Federal government of couples who are already married, solely based on their sexual orientation, and what it's doing is undermining, as you can see in the briefs of the States of New York and others, it's undermining the policy decisions made by those States that have permitted gay couples to marry. States that have already resolved the cultural, the political, the moral -- whatever other controversies, they're resolved in those States. And by fencing those couples off, couples who are already married, and treating them as unmarried for purposes of Federal law, you're not taking it one step at a time, you're not promoting caution. You're putting a stop button on it, and you're having discrimination for the first time in our country's history against a class of married couples.”

   JUSTICE SCALIA to Roberta Kaplan (Respondent): “All these statutes use the term "marriage," and the Federal government says in all of these statutes when it says marriage, it includes same-sex couples, whether the State acknowledges them to be married or not.”

   MS. KAPLAN:  I don't know if that would work because they wouldn't --

   JUSTICE SCALIA: Never mind whether or not it would work. I don't care if it works. (Laughter.) Does it -- does it create a federalism problem?”

   MS. KAPLAN: The power to marry people is a power that rests with the States.


  MS. KAPLAN: The Federal government doesn't issue marriage licenses. It never has.

   JUSTICE SCALIA: Well, it's not doing that, it's just saying for purposes -- just what it's doing here. It says, for purposes of all these Federal statutes, when we say marriage, we mean -- instead of saying we mean heterosexual marriage, we mean, whenever we use it, heterosexual and homosexual marriage. If that's what it says, can it do that?

   MS. KAPLAN: As long as the people were validly married under State law, and met the requirements of State law to get married --

   JUSTICE SCALIA: No, no, no, no. It includes --

   MS. KAPLAN: I'm not sure that the Federal government -- this answers your question, Justice Scalia -- I'm not sure the Federal government can create a new Federal marriage that would be some kind of marriage that States don't permit.”

   ROBERTA KAPLAN (Paul /Weiss) for Respondent. “The answer to the question of why Congress singled out gay people's marriages for disrespect through DOMA: The answer can't be uniformity as we've discussed. It can't be cost savings because you still have to explain then why the cost savings is being wrought at the expense of married couples who are gay. And it can't be any of the State interests that weren't discussed, but questions of family law in parenting and marriage are done by the States, not by the Federal government. The only conclusion that can be drawn is what was in the House Report, which is moral disapproval of gay people, which the Congress thought was permissible in 1996 because it relied on the Court's Bowers decision, which this Court has said was wrong, not only at the time it was overruled in Lawrence, but was wrong when it was decided.”

CHIEF JUSTICE ROBERTS: “Thank you counsel. The case is submitted.”

   PAUL CLEMENT (for Respondent BLAG, Bipartisan Legal Advisory Group of the United States):  “The issue of same-sex marriage certainly implicates profound and deeply held views on both sides of the issue. But the legal question on the merits

before this Court is actually quite narrow. On the assumption that States have the constitutional option either to define marriage in traditional terms or to recognize same-sex marriages or to adopt a compromise like civil unions, does the Federal government have the same flexibility or must the Federal government simply

borrow the terms in State law? I would submit the basic principles of

federalism suggest that as long as the Federal government defines those terms solely for purposes of Federal law, that the Federal government has the choice

to adopt a constitutionally permissible definition or to borrow the terms of the statute.”

   EDITH WINDSOR is the Respondent in this case. Her 2007 marriage to longterm partner, Thea Spyer, was recognized by New York state. Spyer died in 2009, leaving her estate to Windsor, who was denied estate tax exemptions for surviving spouses, and charged $363,000.

    In 2011 she filed a lawsuit against the federal government, charging discrimination against same-sex couples. The Obama administration agreed with her, and refused to defend The Defense of Marriage Act (DOMA).

    The Bipartisan Legal Advisory Group (led by Paul Clement) defended DOMA but was defeated by the Second Circuit Court of Appeals. BLAG then joined The U.S. Justice Department and took their case to the U.S. Supreme Court.

   On June 26, 2013, the Supreme Court ruled that Section 3 of DOMA is unconstitutional as a deprivation of personal liberties protected by the Fifth Amendment of the Constitution.

   “When Thea and I met nearly 50 years ago,” said Edith, “we never could have dreamed that the story of our life together would be before the Supreme Court as an example of why gay married couples should be treated equally, and not like second-class citizens. While Thea is no longer alive, I know how proud she would have been to see this day. The truth is, I never expected any less from my country."

Edith Windsor

Artist’s note:  Many of the above paintings were commissioned by The Human Rights Campaign               and lead attorneys in these cases.



   ...What this question really boils down here, whether or not it can be said that for every legitimate purpose of marriage, are opposite-sex couples and same-sex couples indistinguishable? Indistinguishable. And with all due respect to counsel and to the Respondents, that is not a hard question...

   CHARLES COOPER (in closing rebuttal):   “Consider for a moment the Solicitor General's argument. He is basically submitting to the Court that essentially the one compromise that is not available to the States is the one that the State of California has undertaken. That is, to go as far as the people possibly can  in honoring and recognizing the families and the relationships of same-sex couples, while still preserving the existence of traditional marriage as an institution. That's the one thing that's off the table....

...We would submit to you that that question is properly decided by the people themselves.”

“Your Honor,  the question before the Court, I would submit, is not the injury to the individual proponents, it's the injury to the State.”