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Issues and Outcomes: Hollingsworth v. Perry

By Robyn Hagan Cain | Last updated on

For the rest of the week, and most likely the rest of the 2012 Term, the same sex marriage cases will be the most popular legal topic in America.

Before we spend the rest of the year debating what these cases mean in the greater context of the civil rights debate, let’s review the issues that we’re going to hear on this week, starting with Hollingsworth v. Perry.

On Tuesday, March 26, the justices will hear oral arguments in Hollingsworth, also known as the Proposition 8 challenge. Prop 8 was 2008 California ballot initiative limiting marriage to one man and one woman.

The case has traveled a long path to Court, as you can see in the graphic below.


  1. Whether the Equal Protection Clause of the Fourteenth Amendment prohibits California from defining marriage as the union of a man and a woman; and
  2. Whether petitioners have standing in this case.

Hollingsworth is complicated because a same sex marriage "win" wouldn't necessarily apply nationwide. Last year, Ninth Circuit Judge Stephen Reinhardt wrote a narrow opinion in the Prop 8 case, finding that after the gay community won marriage equality in California, a law rescinding that right was unconstitutional. Reinhardt's decision was based on Justice Anthony Kennedy's reasoning in the 1996 case, Romer v. Evans. The Ninth Circuit decision only applies to the California because California is the only state within the appellate court's jurisdiction that has granted and rescinded marriage equality.

If the Court were to affirm the Ninth Circuit based on Romer, then other states' restrictions on same sex marriage would remain in place.

Same sex marriage advocates could also win before the Supreme Court if the justices concluded that the petitioners lack standing to defend Prop 8.

ProtectMarriage, a conservative coalition that sponsored Prop 8, spent years defending the law after state officials refused to do so. In 2011, the California Supreme Court ruled that when public officials decline to defend a ballot initiative, "the official proponents of a voter-approved initiative measure are authorized to assert the state's interest in the initiative's validity." The Ninth Circuit allowed ProtectMarriage to move forward in the Prop 8 case based on the state court's ruling, but ultimately ruled against the group.

SCOTUS, however, could disagree on the standing issue and refuse to decide the case.


  1. Hollingsworth wins, states may limit the definition of marriage.
  2. Perry wins, states may not limit same sex couples' marital rights after extending such rights.
  3. Perry wins, the Equal Protection clause prohibits states from limiting marriage to one man and one woman. (If this happens, state laws prohibiting same sex marriage would be overturned.)
  4. It's a draw: Hollingsworth lacks standing.

The Supreme Court will convene Tuesday morning at 10 a.m. Oral argument audio recordings will be available on the Supreme Court's website by 1 p.m. EST.

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