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Proposition 8 Weakly Defended at the Supreme Court
Posted by: Claude J. Summers on 03/26/13
Last updated on: 03/27/13
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David Boies (left) and Theodore Olson following the oral arguments at the Supreme Court.

Following the oral arguments at the Supreme Court on March 26, 2013, Proposition 8 seems doomed, though it is far from clear that the Court is ready to issue the broad and sweeping decision that would lead to marriage equality throughout the nation. The most striking impression left by the arguments is how weak the justification for Proposition 8 remains. The proponents of California's ban on same-sex marriage have no compelling reason for denying equal rights to gay and lesbian citizens. On the other hand, it is also questionable whether the Supreme Court has the courage to make a definitive ruling that would establish same-sex marriage as a fundamental right across the country.

An axiom among observers of the U.S. legal system is that cases at the Supreme Court are won through briefs rather than through oral arguments. Hence, it is very risky to predict a ruling based on the arguments made by the parties or the questions asked by the Justices during the hearings. Notwithstanding this caveat, it may be telling that the oral arguments regarding Proposition 8 centered less on the merits than on the question of jurisdiction and less on whether Proposition 8 should be upheld than whether it should be invalidated via a declaration that the proponents lack standing or a narrow decision confined to California or a sweeping decision declaring same-sex marriage a fundamental right.

The only arguments on the merits proferred by Charles Cooper on behalf of the proponents of Proposition 8 were the tired and illogical assertion that excluding same-sex couples from marriage somehow encourages "responsible procreation" by heterosexual couples and that there is an "earnest debate" about same-sex marriage with which the Supreme Court should not interfere by declaring same-sex marriage a right.

Justice Sotomayor pressed Cooper as to whether homosexuals should be subject to other kinds of discrimination than being barred from marriage and Justice Kagan asked what specific harms would result from allowing same-sex couples to marry. Cooper ducked both questions.

Justices Breyer and Kagan also punctured Cooper's contention that marriage is about procreation by questioning how allowing gay couples to marry would affect the institution any more than allowing straight sterile couples to marry. Justice Ginsburg pointed out that the Supreme Court has recognized a right to marry even for prison inmates with no possibility of procreating.

When Cooper invoked Baker v. Nelson as a precedent for a ruling against same-sex marriage, Justice Ginsburg noted pithily that that case was decided in 1971, when "same-sex intimate conduct was considered criminal." (In that case, the Supreme Court dismissed an appeal from a Minnesota man who was refused a license to marry his male partner as lacking a "substantial federal question.")

In contrast, Theodore Olson, arguing for the plaintiffs challenging the constitutionality of Proposition 8, emphasized that marriage is a personal individual liberty and a fundamental right. In a bid for a broad decision by the Court, he said that any ban on same-sex marriage violates due process.

Olson parried with dyspeptic Justice Scalia as to when same-sex marriage became a right, but he kept focused on the issue of equal justice under the law.

Olson forcefully described the effects of Proposition 8: "It walls off gays and lesbians from marriage, the most important relation in life," he said, "thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal and not O.K."

Justice Alito seemed to reject Olson's argument when he asserted, "You want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet. On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?"

When Olson pointed out that "the label 'marriage' means something," Chief Justice Roberts trivialized the answer and appeared to accept the argument of opponents of same-sex marriage that allowing gay people to marry would "re-define" marriage: "If you tell a child that somebody has to be their friend, I suppose you can force the child to say, 'This is my friend.' But it changes the definition of what it means to be a friend."

Solicitor General Donald Verrilli came to argue on behalf of the Obama administration that Proposition 8 should be subjected to heightened scrutiny. However, very little time was devoted to the question of scrutiny.

Most of the hearing was devoted to the question of standing and to the scope of a possible ruling invalidating Proposition 8.

The liberal bloc--Justices Breyer, Ginsburg, Kagan, and Sotomayor--seemed to believe that the proponents lacked standing, while at least some of the conservatives--Justices Scalia and Alito, in particular--seemed predisposed to think that they did have standing. However, Chief Justice Roberts seemed particularly concerned about standing and skeptical that the proponents had standing.

As usual, Justice Kennedy appears to be the key vote in the case, and he seems to be divided against himself.

On the one hand, Kennedy appeared skeptical of the Ninth Circuit's decision that was carefully tailored to California's unique history of marriage equality. He characterized that decision as one that says that a state could only go all the way to full marriage equality as opposed to going only part way and providing some rights. (Justices Sotomayor and Ginsburg also seemed uncomfortable with a decision that applied only to California.) Those comments seemed to indicate that he may be prepared to join a broad decision in favor of marriage equality.

Then he sent contrary signals. He raised some doubts regarding the sociological evidence about children reared by same-sex couples only to mention in the very same sentence that there is a specific legal injury suffered by the almost 40,000 children living in California with same-sex parents. "There are some 40,000 children in California," he said, who "live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case."

He referred to same-sex marriage as "uncharted waters" and said they may lead to "a wonderful destination" or to "a cliff."

Kennedy also said he was "trying to wrestle with" whether a same-sex marriage ban should be viewed as a gender-based classification, calling it a "difficult question." In addition, unlike the other conservative justices, he seemed sensitive to the "harm" and "denigration" suffered by gay people as a result of the bans against same-sex marriage.

My impression is that Justice Kennedy will not vote to uphold Proposition 8 and as a consequence marriage equality will return to California this summer. The question, however, is whether Proposition 8 will be invalidated on the basis of a lack of standing or some other procedural question or whether due to a broad decision that extends the fundamental right of marriage to same-sex couples throughout the nation.

The most depressing thing about the hearing was the fact that the conservative justices apparently care nothing about equal rights under the law or justice itself. If a broad decision is issued, it will likely be a 5-4 decision. If the ruling is that Proposition 8 is invalidated because the proponents lack standing, it may be decided on a 6-3 or 7-2 vote.

In the video below, David Boies and Theodore Olson and the plaintiffs in the Proposition 8 case speak to the press after the oral arguments.

The video below, from the American Foundation for Equal Rights, attaches photos to the audio tape from the oral arguments before the Supreme Court on March 26, 2013.

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