The Key Take-Aways From the Prop 8 Hearing, From Someone Who Was Actually Sitting in the Room


On Tuesday morning at 10:00 a.m., I took my seat at Hollingsworth v. Perry. Despite the fact that I was sitting in a seat with possibly one of the most obstructed views of the court, I sat in the press galley — not too far from where Justice Sonya Sotomayor sat, actually — and the energy was anticipatory.

When the gavel sounded, the justices took their seats in their elongated black chairs, and the court began by announcing the ruling of a different case — Florida v. Jardines — which had to do with whether bringing a drug-sniffing dog to search someone’s front steps without a warrant violates the Fourth Amendment. (It did, according to Justice Antonin Scalia.) Interesting, but not what everybody was there to hear.

Here’s a quick recap of what went down in the court, and the issues that stood out:

At 10:35 a.m. EDT, the main course began with the justices hounding Pro-Prop 8 litigator Charles Cooper on two things. First, does this case lack standing in the Supreme Court because the individuals (i.e. the eponymous proponent, Dennis Hollingsworth) who petitioned the case in lieu of then-governor Arnold Schwarzengger were not government entities? Secondly, how exactly would gay marriage “injure” or harm the said individuals? (Without proving that they would be injured in some way, the case lacks standing.)

Cooper argued that the individuals represented the interest of California voters (who voted for Prop 8 in 2008), but Justices Sotomayor, Kennedy and Breyer seemed to shut down this premise. When Sotomayor asked Cooper on what rational basis there would be for a state to use sexual orientation as a means to denying benefits and protection, Cooper answered, “I don’t have anything to offer."

Fun observation: At 10:50 a.m., the ever-silent Justice Clarence Thomas swivels in his chair to summon a court aide. It’s probably one of few times I saw him talk to anybody this entire hearing. 

Next, at about 10:55, Cooper argued that same-sex marriage would change the long-standing institution of marriage as a tradition, and would shift the focus “away from raising children to an emotional focus on the adults.” Sotomayor and Kennedy especially took issue with this definition of marriage because it ignores heterosexual couples that can’t rear children, don’t have plans to, or are an older couple that married past child rearing age. This especially seemed to rile up Justice Kennedy, who retorted at Cooper, “Suppose we would ask ‘are you fertile,’ when you get married. That’s not very constitutional.”

At around 11, Prop 8 opposing lawyer Theodore Olson (former Solicitor General) tried to begin his argument by appealing to the fact that homosexuals are, indeed, a class of citizens who should have access to the Equal Protection Clause of the Fourteenth Amendment, but was immediately redirected to talk about the standing issue.

Thereafter, Justices Alito and Sotomayor brought up the question of how California’s ruling would affect other states. No clear consensus seemed to be presented among the justices.

This issue was brought up later by Solicitor General Donald B. Verrilli Jr. (who argued on behalf of the U.S.), who worried that if the Supreme Court ruled for Prop 8 (regardless of whether it were just in California or for other states), it would establish a sense of permanency —that any same-sex marriage issue might not be able to be disputed in courts again. Verrilli Jr. concluded that the best course of action would be to act as soon as possible to repeal Prop 8 because “waiting has consequences on couples and children” —it will take longer for same-sex couples to get recognized, receive benefits, and it will take longer for their children to feel accepting of their parents. Scalia seemed somewhat reticent; Alito recognized the merit in the argument.

More than once, the issue of how same-sex marriages affect people and children came up. If the statistics I Tweeted earlier are any indication of public opinion, then more and more Americans are embracing same-sex marriage and homosexuality.

I ran into three seniors from James Madison High School after the hearing, and spoke with them about their opinions on the case.














Kyra Bell (pictured middle) made a point that maybe Cooper should hear: “It’s not the sex of the parents that defines how well a child is raised. It’s in the actual quality of the parenting.” Classmate Antonia Arnautaki (pictured left) agreed. She offered the perspective that having two parents (no matter their sexual orientation) is arguably more important. 

Finally, Claire Eder (pictured right) offered, “I think that if we’re going to focus on how children are affected by their parents, we should be focusing on things like child abuse and not same-sex parents. It’s not a problem. We should be focusing on the reasons why children are harmed by certain relationships.” 

Writer's note: Jonathan McCormack, Senior Managing Editor of the George Washington University Federal Communications Law Journal, helped to report this story.