wedding-ringOn June 26, 2013, The U.S. Supreme Court issued a decision that was considered historic by anyone’s measure.  Not only was the makeup of the final majority and dissent of note (with Justice Antonin Scalia favoring the majority’s argument that, in effect, made gay marriage legal in California again), but the impact for California and the rest of America have been hotly discussed.  Adding another interesting element to the mix, both former governor Arnold Shwarzenegger and current California governor Jerry Brown refused to defend the “state’s” interest in the case, forcing a turn of events that may very well have aided proponents of gay marriage in California but narrowed the case’s national impact.


The case decided by the Supreme Court, Hollingsworth v. Perry, was rife with expert witnesses, who appeared to heavily impact the decision, particularly at the district and appellate court levels (where the plaintiffs, favoring same-sex marriages prevailed twice).  In the Northern District of California, where the case was first argued and presided over by Judge Vaughn Walker, the plaintiffs challenged “Proposition 8,” a constitutional amendment in California that banned gay marriage.  See, e.g., Dylan Matthews, “The Supreme Court ended Proposition 8.  Here’s what that means.,” The Washington Post (Jun. 26, 2013).

The plaintiffs, or those supporting the right for same-sex marriages to take place in California, offered several different expert witnesses to prove their arguments.  Among these witnesses were: historians on marriage and on the gay and lesbian communities, political scientists testifying to the impact of discrimination on the basis of sexual orientation, psychologists speaking about the issue of gay couples raising children, a former San Diego mayor (a Republican, who changed his position on gay marriage after learning of his lesbian daughter’s experiences with discrimination), and even the Chief Economist for the city of San Francisco.  Id.

The defense, which consisted of the leader of a former California Senate Minority Leader, proffered only two expert witnesses of its own.  One of these experts, though an opponent of gay marriage, made a crucial concession on cross-examination: that people in American would become “more American on the day we permitted same-sex marriage than we were on the day before.”  See id. That witness’s testimony was determined by the district court to be “unreliable and essentially entitled to no weight,” and that particular expert has since come out in support of gay marriage.  Id. The defense provided one other witness, whose qualifications were not challenged, though the substance of his testimony amounted to an opinion that the LGBT community has gained political power in recent years.  Id.

After coping with defeat at both the district court level and before the Ninth Circuit, the defendants appealed the case en banc (a request that the entirety of the Ninth Circuit review the case, rather than the standard appellate panel of three judges).  See id. Their request was denied, leaving them with one option, to play the “cert lottery” and hope the United States Supreme Court was willing to listen.  In December, the Supreme Court granted cert, and the case has finally been decided.  The question is: What exactly has been decided?

Commentators and legal analysts from every walk of life and every political spectrum have attempted to interpret the meaning and impact of Hollingsworth.  Some have called it a victory for gay rights nationwide, while others have been more circumspect about the Supreme Court’s holding and its scope.  Those in the latter category are correct: Because Hollingsworth was neither defended by the state of California (nor ANY state entity), the Supreme Court held that the appellants lacked standing to even bring suit challenging the district court decision.  See id. Since only Proposition 8 was addressed, rather than the larger issue of same-sex marriage, the Court’s ruling does not apply nationally, nor does it apply to marriages outside of California.

Attorneys should take pause to note that the weight and scope of the Supreme Court decision might have been entirely different, had the district court case played out differently.  Certainly, opponents of same-sex marriage ought to pay careful attention to the strategies deployed by the Hollingsworth camp:  using a variety of well-qualified expert witnesses, from multiple fields, to testify about the substantive issues surrounding same-sex marriage.  Proponents of gay marriage should note those strategies as well and, if interested in prevailing at higher levels, use similar strategies but broaden their appeal.  In Hollingsworth, the attorneys for the plaintiffs did an excellent job of proving links between same-sex marriage and the benefits that would accrue to communities in California, were Proposition 8 to be invalidated, but they did not apply such logic or evidence on a national scale.

Few organizations, whether in favor of or in opposition to same-sex marriage, seemed to initially grasp that Hollingsworth came down to a question of standing, not the more substantive issue of the legality of who should be free to marry.  Although both sides attempted to make arguments concerning the latter issue, attorneys, in future litigation, would be well served by noting both the strengths and weaknesses of Hollingsworth’s legal strategists.  Certainly, pulling experts from true cross-sections and multiple fields is a proven strategy that pays in dividends.  However, when asking the experts, attorneys who truly want to make a larger impact will have to address the larger issues, with qualified, reliable “opinion evidence,” which only the experts can provide.

By: Kat Hatziavramidis, Attorney-at-Law