At a mock moot court organized by Georgetown University Law Center's Supreme Court Institute, legal experts debated Hollingsworth v. Perry, a federal challenge to the 2009 amendment to the California constitution known as Proposition 8, which provided that only marriages between a man and a woman would be recognized in the state.
As the U.S. Supreme Court is set March 26 to hear the case, specifically the issue about whether the Equal Protection Clause of the Fourteenth Amendment prohibits California from defining marriage as the union of a man and a woman, a group of veteran appellate lawyers and observers on February 27 previewed the argument.
Noel Francisco, a partner at Jones Day, served as counsel for petitioners while Pamela Karlan, co-director of Stanford Law School's Supreme Court litigation clinic, represented the respondents. Francisco offered a utilitarian defense of marriage.
"The multicultural and multi-millennial definition of marriage serves at least three related interests," Francisco said. "First, it serves the government interest in insuring that procreation takes place in the context of a stable two-parent family unit by providing special recognition to the only type of union that is capable of procreation. Second, it furthers the state interest in enforcing the traditional conception of marriage."
Finally, Francisco said, and perhaps most importantly, "it serves the people's interest in proceeding cautiously and incrementally when they seek to change the fundamental nature of age old social institutions that are at the core of our society."
The justices allocated 30 minutes to both advocates, interrupting each other, but in a much lighter way than is often seen at the high court.
Amy Wax, a professor at the University of Pennsylvania Law School serving as one of the mock justices, asked each advocate if they would consider extending marriage between siblings or allow a woman to marry her "baby daddies" in order to legitimate the children she had had with different men. The students burst out laughing when Karlan replied, "What is a baby daddy?"
Karlan's main argument was that same-sex couples have been granted the same rights as married, heterosexual couples—except their ability to call their relationships marriages. “What is the rationale for not extending the word when you have extended everything else?” Karlan said. She added that California's choice to call a domestic partner regime, which she thinks should be called marriage, is "insulting."
Another mock justice, Kirkland & Ellis partner Christopher Landau, then compared marriage with "dinner" to show that words have specific meanings that ought to be respected. Landau also argued that if marriage was mainly about procreation, he did not see the difference between same-sex couples and infertile heterosexual couples.
The other mock justices then took questions from the students in the audiences. They included, Irv Gornstein, executive director of Georgetown's Supreme Court Institute; Pamela Harris, also of Georgetown; Sidley & Austin partner Carter Phillips; and Ed Whelan of the Ethics and Public Policy Center.
Unlike the real Supreme Court, the mock justices did not rule.