Students Take In U.S. Supreme Court Arguments on Same-Sex Marriage

Law students Mulan Cui and Jay Shannon began waiting in line more than 24 hours before the U.S. Supreme Court would hear oral arguments Tuesday for Hollingsworth v. Perry, the case considering the constitutionality of California's gay marriage ban, Proposition 8.

Despite the heavy, wet snow blanketing Washington, they were joined by a handful of high school students they teach as part of the Marshall-Brennan Constitutional Literacy Project. The project mobilizes law students to lead courses on constitutional law and juvenile justice in public high schools in the District of Columbia and Maryland.

The group set up camp under tarps, umbrellas, and lawn chairs to stay dry, while making friends with their neighbors in line to pass the time. The opportunity to hear a case so important to Cui’s generation made braving the long line and weather more bearable, she said.

On Tuesday morning, the group was excited to learn they had secured a spot to hear the arguments.  

"We teach our students about the judicial system, and it’s important to be able to see it in action," Cui said. "This is the law happening!"

According to Jay Shannon (pictured with his ticket), the Justices asked probing questions of both parties and posed drawn-out hypotheticals throughout the arguments.

"We had trouble reading the justices and don't know how the case will come out," he said.

"Through this experience, we hope to have gotten our students excited about the American legal system, and we hope they will remember being a part of such a historic moment for the rest of their lives. We weren't there to protest or support either side—we all fell on one side of the issue or another, but our goal was simply to expose our students to the excitement of the law and the passions and protests that come with it. All in all, the weather was terrible, but the company was great, and it was all worth it in the end."

A Tale of Two Cases  

AUWCL Experts Weigh In

Check out American University Washington College of Law experts in the news, weighing in on the same-sex marriage cases:

Prof. Amanda Frost, C-SPAN

Prof. Nancy Polikoff, BBC

Prof. Stephen Vladeck, Fox 5

Prof. Stephen Wermiel, MSNBC

On campus, a pre-argument discussion of the two cases, Hollingsworth v. Perry and U.S. v. Windsor, was organized by the law school’s Lambda Law Society, a student organization dedicated to building awareness about LGBTQ legal issues, eliminating stereotypes about LGBTQ individuals, and fostering a supportive LGBTQ and ally community.

"It’s an important week for our generation, and it’s great to be able to kick it off with this event at the law school, " said Daniel Honeycutt, Lambda’s executive director. "This event allowed students to hear about the intricacies of the issues at play."

Maryland State Senator and Professor Jamin Raskin moderated the discussion. He sponsored Maryland’s same-sex marriage law, which took effect in January of 2013. Panelists included an academic, legal practitioner, and non-profit director, who covered the background of both cases, offered insight about the arguments to be made before the court, and discussed possible decisions.

"It’s clear where America is headed and where the right side of history is," said panelist Evan Wolfson, founder and executive director of Freedom to Marry. "Will the Supreme Court feel the momentum, look to its legacy, and do the right thing?"

According to Nan Hunter, panelist and professor at Georgetown Law Center, there has been an enormous shift in the political and social landscape from when the Hollingsworth v. Perry case was initiated in 2009. Perry centers on California’s Proposition 8. The question before the High Court is whether Proposition 8 violates the 14th amendment, which prevents states from denying citizens equal protection under the law.

"Perry is the tougher case," said Luke Platzer, panelist and partner at Jenner & Block. "Clearly, intermediate scrutiny should apply and be both a fundamental liberty and equally protected. I’m a little skeptical on the standing issue. While I have strong view about the merits, I’m not sure that they’re properly before the Court."

The Defense Against Marriage Act case U.S. v. Windsor challenges the constitutionality of defining marriage as a legal union between a man and a woman. In other words, whether Congress can pass legislation treating same-sex couples who are already married different from heterosexual couples. Platzer worked extensively on the DOMA case in the lower courts, and said that Windsor is a good case to have before the Court because it involves a "sympathetic plaintiff with a great story."

When plaintiff Edith Windsor’s spouse passed away, she paid estate taxes that surpassed those of what a different-sex couple would pay. Windsor’s same-sex marriage was recognized in New York, but not recognized by the federal government.

"DOMA should fall…I view Windsor as another Romer case," said Platzer, speaking of the 1996 case dealing with civil rights and state laws. "DOMA clearly violates equal protection guarantee." Wolfson argued that the end goal, no matter the Court’s ruling in June, should be to end discrimination and exclusion, and see that marriages are protected no matter where one lives.

"The logical questions of constitutional analysis in the same-sex marriage issue are surprisingly easy," said Raskin. "Is there a fundamental right to marry under Due Process that is being denied to gay and lesbian citizens? Yes. Is there any rational basis for treating gay people differently when it comes to their right to marry? No, there’s not. So these laws offend both Due Process and Equal Protection. The Defense of Marriage Act is especially egregious because it withholds federal benefits from gay people who are actually married. Proposition 8 in California actually revoked the right to marry from the gay community. These things, as a matter of logic, are plainly unacceptable. The hard part of the case, made harder by so many little detour routes related to standing questions, is the politics of the Court doing the right thing. But, for those of us, who really believe in the Constitution, the Court should forget about the politics and decide the law."

A Narrow Decision?

As the first day of arguments got underway, second year law student Ryan Watson headed to the Court to show his support for gay marriage. Although representatives from all sides of the issue were present, Watson said the crowd was more energetic than heated. 

"I know that merely standing outside the Court chanting is not going to change the justice’s opinions, but it’s great to have that sort of camaraderie with others," Watson said. "It was very unifying."  Watson has been following the Proposition 8 since the district decision in 2010.

"I’m not optimistic that the Court will make a broad decision," Watson said. "I think they’ll make the right decision, but they’ll do so narrowly."