It looked like a Rock Concert.  People staying in line since Sunday to get free tickets today to one of the thirty seats in the public section.where visitors can watch for three to five minutes each before being rotated out. There were rallies with rainbow sherbet clad spectators and “busloads of Reuben Diazs”, as one writer tweeted.  Retired gay bishop of the Episcopalian Church, Gene Robinson,,was there, as was activist Cleve Jones who volunteered with Harvey Milk. The anti-gay rally seemed “subdued, “ according to one tweeter.  But what do you expect with the latest ABC News poll showing that 58% of Americans agree that it’s time for marriage equality?  

This was not another Woodstock, but will go down in history as an important day for GLBT civil rights. The Pros and Cons had come to the steps of The Supreme Court building to express their views on marriage equality which was being argued inside by Ted Olson, for same-sex couples and against Proposition 8; Charles Cooper, for “Yes on 8” and for Proposition 8. For the U.S. and against Proposition 8: Solicitor General Donald Verrilli.

The official case name is Hollingsworth v. Perry.  The plaintiffs in the original lawsuit are two same-sex couples who seek the right to marry:  Kristin Perry and Sandra Stier of Berkeley and Paul Katami and Jeff Zarrillo of Burbank.  The petitioner is Dennis Hollingsworth, a former state senator from California who helped lead protectmarriage.com.  After losing in the Ninth Circuit U.S. Court of Appeals, he brought the appeal.

The issue is whether the voters of California have a right to amend their state constitution to prevent same-sex couples from obtaining marriage licenses the same as heterosexual couples. Other states with similar bans could potentially be affected if a decision is rendered.

The question posed by the Court of nine Justices is whether Proposition 8 violates the equal protection clause of the Fourteenth Amendment that prohibits states from depriving any person of “the equal protection of the laws.” It also considered “standing:” Does the Yes on 8 coalition that campaigned for passage of Proposition 8 have legal standing to appeal the lower court decision, because California-elected officials chose not to appeal?

Today, Verrilli noted the fact that the United States had not addressed in its briefs the issue of standing nor did the federal government have a “formal position” on the issue.  Nonetheless, he believes that the proponents of Prop 8 lack the particularized injury to qualify for Article III standing.

Olson says yes it would be a win if the court decided the proponents didn’t have standing, but also offered that based upon the questions that the justices asked, he has no idea how the court will decide.  Speaking about the opposition, he said “no one really offered a defense.” 

The arguments are done.  So, who won?  A reporter tweeted “SCOTUS won’t uphold or strike down #Prop 8.  Kennedy thinks it’s too soon to rule. #Prop 8 will stay invalidated.”  Another tweeter wrote “ not expected that SCOTUS will make a broad ruling on ss(same-sex) marriage which burdens state legislatures.” Kennedy, sympathetic to gay marriage, is considered a swing vote and wrote the opinion in the 2003 Lawrence vs. Texas striking down sodomy laws ten years ago today.

Reporters (36 journalists) were allowed in the 400 -seat courtroom: 240 for the public, 124 for guests of the justices and members of the Supreme Court bar. Television was barred from the courtroom, but audio tapes and transcripts are available of today’s proceedings as well as the other LGBT civil rights case on March 27rh: United States v. Windsor. Go to http://www.marriageequality.org/Prop 8-DOMA-SCOTUS. 

The Supreme Court will hear tomorrow if the federal government can deny citizens who are legally married to a same-sex partner the same benefits it provides citizens who are married to the opposite sex.  DOMA or Defense of Marriage Act affects over 1,000 federal statutory provisions of the United States Code owing to marital status in determining or receiving benefits, rights, and privileges.

The Court needs to question whether Section 3 of DOMA violates the equal protection of the Fourteenth Amendment that prohibits states from depriving any person of “the equal protection of the laws.”  Also, does the executive branch’s agreement with the Second Circuit decision that DOMA is unconstitutional preclude the Supreme Court from ruling in the case, and whether the House Bipartisan Legal Advisory Group (BLAG) has standing to defend DOMA in court?

Edith Windsor is the plaintiff.  She is the surviving spouse of Thea Spyer whom she married in 2007 in Canada.  They were a couple for forty years.  Spyer died in 2009 before New York state legalized same-sex marriage.  The U.S. Internal Revenue Service did not recognize the marriage, and rather than allowing Windsor to take the routine marital estate tax deduction, demanded she pay more than $360,000 in estate taxes.

The real defender of DOMA in this case is a legal team hired by the Republican-led House legal office (BLAG) to defend the administration’s obligation to enforce DOMA. Section 3 is the only part of DOMA under contention.  The Windsor lawsuit is one of seven challenges with appeals pending before the Supreme Court against DOMA. Attorneys arguing are: Roberta Kaplan for Windsor and against DOMA; for the U.S. and against DOMA:  Solicitor General Donald Verrilli; for BLAG and for DOMA:  Paul Clement.