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 same-sex 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!"
A Tale of Two Cases
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.
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."