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Tuesday, December 6, 2016

The Supreme Court heard arguments about the constitutionality of same-sex marriage for the first time in U.S. history Thursday. But much of the oral argument in Hollingsworth v. Perry was occupied with the question of whether the petitioners had the “standing” to argue in favor of California’s Proposition 8, the ballot initiative that banned gay marriage.

You can listen to the arguments here or read the transcript here.

Charles Cooper — the attorney arguing in favor of the proposition that added a provision to the state’s Constitution stating “only marriage between a man and a woman is valid or recognized in California” — was in the middle of the first sentence of his argument when Chief Justice John Roberts interrupted him to ask about the “jurisdictional and merits issues here.”

The 2010 “Republican Lawyer of the Year,” according to the Republican National Lawyers Association, Cooper argued the case on behalf of ProtectMarriage.com, the group that put the proposition on the ballot. But several of the Justices — including Anthony Kennedy, who is expected to be the key vote in this case — questioned if the group, or any group, suffered because California officials failed to enforce the initiative, which is required in order to give a petitioner “standing” in federal court.

California’s Supreme Court upheld an initial challenge to Prop 8 but decided that any same-sex couples married during the brief period of legal same-sex marriages in the state were still lawfully wed. U.S. District Court Judge Walker Vaughn then overturned the proposition in 2010. A federal court affirmed Walker’s decision — along with dismissing a challenge that he must recuse himself because he is gay — in 2012. The Supreme Court agreed to review the ruling in the case of Hollingsworth v. Perry — however, the question of who had the “standing” to argue in favor of the proposition remains controversial.

The focus on jurisdiction, along with a comment from Kennedy suggesting that a sweeping ruling would lead the Court into “uncharted waters,” has led many observers to believe that a narrow ruling that allows the federal court’s decision to stand without any broader implications may be imminent.

A total of 40 states currently do not allow same-sex marriage. The Defense of Marriage Act denies the same-sex couples who can marry the federal rights of marriage. The Supreme Court will hear a challenge to that law Wednesday.

Ted Olson — George W. Bush’s former Solicitor General, who is now representing the two same-sex couples challenging Proposition 8 — argued over and over that the Court had previously found a constitutional “right” to marry.

After the hearing, Olson said that he had “no idea” how the Court would rule.

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