Prop 8 Oral Arguments @SCOTUS & Possible Outcomes

So I've listened to the oral arguments in the Prop 8 case before the Supreme Court of the United States. Audio is available on C-SPAN, a transcript is here:

http://sblog.s3.amazonaws.com/wp-content/uploads/2013/03/perry.transcript.pdf

A few observations (and I hope others will feel free to add their own):

The court seemed skeptical of both side's arguments on the issue of whether the proponents of Prop 8 have standing to appeal the district court's ruling overturning Prop 8. Some early analysis I read suggested the court was more skeptical of proponents' arguments on this issue, but I find it to be a toss up.

The court was having none of the government's amicus argument that states must go all the way to providing the status of marriage if they provide all the legal rights/privileges/obligations through separate law (domestic partnerships, civil unions). They could not reconcile the urgency of making states with civil unions provide marriage with allowing states that provide nothing to continue such complete exclusion.

It was clear to me from this skepticism of the government's amicus argument that the court may be inclined to view this as an all or nothing matter; either all states must be required to provide marriage equality, or no state can be required to do so, at least not based on the government's argument. I could not read any consensus among the justices for extending marriage equality to all 50 states.

Kennedy was particularly reluctant to consider the merits of the case, calling into question whether it should even have been granted cert. Scalia was his usual beligerant self, refusing to let go of the irrelevant point of nailing down a date for when exclusion of same-sex couples from marriage became unconstitutional. When is not the question, but if. Scalia appeared to be saying that without an amendment to the consitution requiring this specific extension of equal protection to same-sex couples, no requirement for it could otherwise be found to exist. At least he's consistent in his 'dead constitution', originalist ideology.

Roberts' posed a question that nearly left Verrill (for the government) speechless, suggesting that if the children of gay couples are doing just fine, there would seem to be no need to extend marriage equality to their parents:

Possible Outcomes:

• The court decides that the proponents don't have standing, in which case they avoid having to address the equal protection and due process claims, and the district ruling stands, overturning Prop 8.

• The court decides it can't reach a conclusion on the merits and dismisses the case (seems really unlikely to me, but other analysts have suggested it seems possible here). I think that means the 9th Circuit ruling applies. As I recall that was a very narrow ruling, so it would still affect only California.

• The court decides in favor of proponents, upholding Prop 8. That would mean rejecting the 'lack of a rational basis' rulings of the lower courts. Still might let them avoid the due process/equal protection claims.

• The court rules in favor of overturning Prop 8. Very sticky; they could narrow the ruling to just the plaintiffs or just California, but I don't think that's likely based on what I heard today. Nor do I think they're likely to take up the due process/equal protection claims. I just don't see any consensus among them for that.

So which one will it be? Is there a possibility I haven't considered?

I originally thought they might not even take the Prop 8 case. Having been wrong about that, I may be completely wrong once again about the outcome, but I think they are going to, by the thinnest of margins, uphold Prop 8 and vacate the rulings of the lower courts. 'Conventional wisdom' has been telling us all along that Kennedy is the swing vote, and I do not see him swinging toward marriage equality, at least at the state level.

Thoughts?

 

Here are the telling questions/statements of the justices (which are what really matters at oral arguments. The answers provided by attorneys...not so much).

On the question of standing:

and a little later:

In other words, granting standing in this case would be breaking new ground, and could set a precedent for future cases. The justices may not be ready to do that. It would let people who are neither elected nor appointed by any elected official (and therefore unaccountable to anyone) to represent the state without any controls - meaning they could wind up costing the state a lot of money.

 

Baker v. Nelson is a same-sex marriage case originating in Minnesota from 1971 that the Supreme Court received as a matter of mandatory appeal (a practice since ended). The court dismissed the case for want of a federal question of law. Proponents of Prop 8 have tried to argued that it sets a precedent fatal to the case heard today, encompassing the idea that the regulation of marriage is a states' rights issue and outside the jurisdiction of federal courts. Justice Ginsburg above is voicing her skepticism; legal analysts have regarded the precedent set by Baker as very limited and significantly weakened by legal findings in the years intervening.

 

This followed Justice Sotomayor questioning how discrimination against homosexuals could not be okay in one instance, but fine in this instance. The questions of both justices are intended to wrestle with the question of whether homosexuals form a class of people being discriminated against for a suspect, rather than a legitimate purpose of law. Cooper basically dodged by saying it wasn't the right legal question.

At little later we find Justice Kennedy asking Cooper if he concedes "the point that there is no harm or denigration to traditional opposite-sex marriage couples" [from same sex couples being afforded equal marriage recognition].

Cooper says he doesn't, and Kennedy tells Cooper to answer Kagan's question, which Cooper completely dodges with a lengthy and vague exposition about the potential but unknown effects of same-sex couples being allowed to marry. He's saved by Justice Scalia throwing him a lifeline, trying to get him to talk about the effects on children of same-sex couples. Justice Ginsburg tries to point out that the question is moot in California since same-sex couples there can adopt. Cooper is helped by Kennedy expressing concern over the newness of same-sex marriage and therefore the lack of information available from research about its effects.

 

Throughout this process proponents have framed their arguments around the idea that the primary purpose of legally recognizing marriage is to channel procreative urges into an institution wherein parents have a legal and social responsibility to raise and support the offspring that are a product of acting on those urges.

Justice Kagan's question is digging around the law's over-inclusiveness of non-procreative couples. The idea being, if the law can exclude same-sex couples who don't procreate together, then we could hypothetically also have a law that withholds marriage recognition from couples where both are past an age where they are likely to procreate together.

Cooper tries to get around it by responding then men rarely lose their procreative ability during their lifetime. Kagan rejoins that if both are over 55, "there are not a lot of children coming out of that marriage."

Also from Cooper:

 

The problem with Roberts observation in the context of this case is that California did briefly provide marriage to same-sex couples before Prop 8 - the amendment is VERY much about excluding a particular group - homosexuals. This is something I feel the 9th Circuit got right - that Prop 8 was as much - if not more - about expressing disapproval of homosexuality than any of the rationales proponents have given in court to support it.

 

Scalia proceeds to badger Olson to give him a date for this 'event'. It's a ridiculous question, as the question before the court is not dependent on when it became unconstitutional, but if it is indeed unconstitutional. This was pure theater and no substance on Scalia's part. He comes about as close to throwing a tantrum as one is likely to see from a Supreme Court justice.

Obviously the Constitution does not change except through the process of amendment. Scalia, as an originalist, apparently thinks same-sex couples can't be provided marriage recognition without amending the Constitution. Nevermind that the regulation of marriage isn't a power reserved to the federal government in the first place.

While the Constitution does not change (except as noted above), our understanding of the law most certainly does evolve through the rulings that the court makes in interpreting what the law means when presented with cases like this. For Scalia to pretend otherwise is ridiculous.

 

...in response to some back and forth with Olson over whether the label 'marriage' matters, and Olson reminding the Court that it has ruled numerous times that marriage is a fundamental right. And while Roberts would be correct that some cases have dealt with that aspect of marriage, Justice Ginsburg pointed out much earlier during the questioning of Cooper that the court has also said that marriage was a fundamental right even in cases where procreation would not be possible under the circumstances specific to those cases.

 

This may not be the probing question it seems at first glance. To me, it appears the Sotomayor is setting Olson up to provide the court with exactly the statement he wants to make that will differentiate this case from other potential cases seeking recognition of polygamous or incestuous marriages.

Olson's response seeks to differentiate restrictions on polygamy as aimed toward behavior, while the restrictions against homosexuals target status. I don't like this answer; I find it disingenuous. Marrying is a behavior, regardless of who is marrying. It's clear that the law doesn't exclude homosexuals from marriage; it uses the requirement of opposing genders to exclude all same-sex couples, with homosexuals as the real target since they're the most likely to enter into a same-sex marriage. The animus toward homosexuals that underlies Prop 8 is undeniable - it's why Tam (one of the five original proponents) dropped out of the case - his expressions of animus toward gay people would have been very damaging to proponents' case because they reveal the real intent behind the proposal of this law.

Somewhat astoundingly, Olson gets away with this argument. Sotomayor doesn't challenge him on it, and Justice Kennedy offers a distraction through a change of subject (the 'uncharted waters' of same-sex marriage).

 

This was a response to General Verrilli, who is representing the government in support of the plaintiff's case. The government argues that the court should require states that have domestic partnerships or civil unions to provide marriage to same-sex couples, but simultaneously holds that states which provide no recognition of same-sex couples should be able to continue providing nothing. This is what the government describes as a cautious approach, in contrast to amending a state constitution to put marriage beyond the reach of same-sex couples 'forever'. The idea being, that while states that offer everything but the label of marriage are violating equal protection, states that offer nothing should have their own day in court to present arguments in support of that position.

The Court was having none of it. Alito pointed out that the California constitution could be amended again to repeal Prop 8, for example.

And there's the hole in the government's argument, large enough to drive a Mack truck through it. If it's a violation of equal protection to withhold marriage recognition from same-sex couples, then it would be so in all states, not just those which offer civil unions. The government's position is not sustainable. Justice Sotomayor tries to rescue it by posing the question to Verrilli of how another state might be able to present a different record on marriage to make their case for withholding it from same-sex couples, but the effort fails. Roberts is relentless in pursuit of this. And it sets up something I didn't see coming...

 

: palm to forehead :

Wait...what now?

Sneaky. Roberts uses a tactic of equivocation here using the word "harm". On the one hand is the question of whether or not children are harmed by being raised by same-sex parents.

This is different from the question of whether those same children are harmed as an effect of withholding marriage from their same-sex parents.

Just lost whatever respect I had remaining for him. What a low-down, dirty trick of language he employed there.

 

I believe Article 4, Section 2 provides recourse as a choice of law under any conflict of laws.

 

Next we get into a discussion between the justices and Cooper during his rebuttal statements about whether the case should have been heard by the Supreme Court.

Cooper responds that for the Court not to have heard the case would have done an injustice to the People of California who voted to adopt the amendment.

Justice Ginsburg attempts to address the 'percolation' brought up by Sotomayor, but just confuses everyone. She attempts to draw a comparison here, citing an earlier case allowing interracial cohabitation (McLaughlin v. Florida), which preceded Loving v. Virginia, which allowed interracial marriage. I think the intent was to portray this as being analogous to the Lawrence v. Texas case decriminalizing consensual same-sex relations in private between adults, which precedes this case seeking to allow same-sex couples to enjoy legal marriage.

I'm not persuaded that the analogy works though. The Lovings faced a criminal prosecution for marrying. The couples in the case before the court today did not. It's a difference in context that shouldn't be neglected when considering whether 'due process' has been violated here. But I don't think the Court is even going to cover that ground.

 

Can you explain? I will just note that it didn't come up in today's oral arguments.

 

Roberts is a (*)(*)(*)(*)(*)(*)bag. I predict the lawyers will slaughter him with this one. It's kind of easy at this point.

 

Except they didn't. Verrilli was flumoxed by it, and I can't really blame him as it took me a while to process just exactly what Roberts had done in asking that rhetorical.

In the end, it ought to work against the arguments of the proponents, who have framed a lot of their argument around children needing opposite-sex parents. If the children being raised by gay parents are doing just fine, and are not harmed by their parents lacking marriage recognition, then why should we buy the argument that the children of opposite-sex parents need their parents to be married? Why should we buy proponents' argument that so-called 'traditional', heterosexual marriage is an institution vital to society and that expanding recognition to same-sex couples endangers that? It's an argument that makes less and less sense.

Should we have an expectation that the other justices will take a critical look at Roberts question and ponder the ramifications it has for proponents argument? I certainly don't.have any such expectation. Whatever skepticism they might have toward proponents' argument, it looks to me as though they're even more skeptical of the idea that society would benefit from recognizing same-sex couples. And that greater skepticism on their part means same-sex couples will lose this case. All the legal arguments just become window-dressing; the framework for expressing that skepticism.

 

Here's the thing:

About 9 years ago I attended a panel where legal experts pursuing marriage equality told us it would take a mere 10 years to get a case to the Supreme Court that would wind up in a decision providing marriage equality in all 50 states. I thought they were nuts then, and I still do.

I was very critical of the pursuit of the Prop 8 case in the beginning. I thought it was ill-timed, considering that a majority of states still have amendments banning the recognition of same-sex marriage. I thought that a loss at the Supreme Court would set us back decades.

I still hold all of that to be true, and now I'm watching my nightmare come to fruition. I firmly believe the only way to achieve full marriage equality is to work state by state to overturn the marriage amendments. Some people clearly thought there was a shortcut - bringing the Prop 8 case before the Supreme Court. It's even more clear to me yesterday just how wrong they were about that.

I still have hope for DOMA's Section 3 to fall, but after yesterday's mess I'm feeling less assured. My partner and I have been hoping that we could at least go out of state to get married if DOMA falls. If it doesn't get struck down, then we're out of options. My state has a Republican majority house, senate, governor and court. Repealing my state's amendment won't be just difficult; it's downright impossible in the current political circumstances. No doubt there are people in other banning states who face a similar situation.

Now it looks to me like the Court is likely to make a decision on Prop 8 that just reinforces our problem at the state level. I have no faith in public opinion polls. A failure to overturn Prop 8 will not be an impetus to action here - it wlll just discourage us and we'll probably see support for equality by the public decline as well. This actually gets worse in a way if Prop 8 is upheld but DOMA falls. An apethetic and inattentive public will assume we already have marriage equality; they'll be blind to the fact that it's only accessible from a handful of states.

 

Let's see- it's only the first day and already you've given up? That's sad. This has a long way to go, and you can't be seriously hanging it up after the first day.

 

Not a matter of "hanging it up after the first day". I have stated many times on this forum that I have no expectation of seeing nationwide marriage equality in my lifetime, which comes out to maybe another 35 years, tops. I have that little faith in the American public and our legal system. Not because I think the majority of Americans are anti-gay bigots, but because I've observed the glacial pace of change in the laws and that most people simply aren't engaged with what's happening in their government, and don't care about issues that don't effect them personally. Gay people will not achieve equality on their own - they need the support of the public, and I don't mean a positive response to an opinion pollster's questions. I mean active involvement in the political process. I mean people contacting those who represent them in state and federal government. I mean monetary support to defray the costs of legal challenges, etc.

We have opinion polling that collectively suggests a slim majority may be warming to some kind of recognition, but not necessarily marriage. You can't go by one poll, you have to look at a number of them and the trends over time. Rising positive responses during the time of these cases enjoying popularity in media may not be sustained in the longer term. Then there's the legal reality - 30 states with bans against recognizing same-sex marriages, and in my state a ban that also encompasses ANY 'agreement' other than one man/one woman marriage, for ANY purpose. So no domestic partnerships, no civil unions, no enforceable private contracts attempting to simulate the legal effects of marriage. NOTHING!

And I know what's coming - the typical response of "just move, then". To which I reply by telling people right where they can stick there suggestion that we should have to give up our home, career, family and close friends to move halfway across the country just to experience the equality that should be ours as a citizens of this country. My partner and I have elderly parents and moving them is not an option, nor is abandoning their care to disinterested siblings.

You see, legal marriage doesn't exist in some kind of vacuum. It's not an abstract issue for us, but one with real effects, and there are real barriers to us just picking up and moving to another state in pursuit of that one issue when there are many others competing for our attention and which we have to weigh against each other.

 

Your defeatist attitude is not doing anyone any good. And as far as support for SSM- it's now at 59%. That is FAR from "a slim majority may be warming to some kind of recognition, but not necessarily marriage".

Now, I realize that living in a state like Michigan, you probably are very used to hearing bad news from your state government all the time. The whole country is not like Michigan though- I promise you that. We will get legal marriage. It WILL happen, but not with attitudes like yours. I know it's a tough time right now, but keep your chin up. Fight with us, not against us.

I don't know who you think you're talking to, but I am also gay, so I have a stake here as well.

 

Try realist attitude.

And that's one poll, conducted in the face of the issue getting lots of attention because of the cases arriving at SCOTUS. You can't go by this one poll. You have to look at the issue over a much longer period of time and consider the context of other events influencing public opinion at the time the poll was taken.

I don't think being a realist about the situation is "fighting against you". If you want to talk about people fighting against each other, then lets talk about the west coasters and urbanites getting out ahead of the rest of America on the issue and leaving those in middle America behind. My state has NO protections for gay people. And advocates think they're going to win by taking a case on marriage to the Court? It's like we live in two completely different countries, with those in more progressive states just putting on blinders and ignoring the plight of the rest of us.

Won't make me spare you the tough talk on these issues. Better wake up and realize just how long a wait you have ahead of you.

 

I think you're being far too negative. I know what your state is like- same as Ohio, my home state. That's why I live in neither.

Now, like I said before- I can see how being in Michigan would make you feel this way. Defeatist mentality rules there just like it does back home in Ohio. I'm sorry, but I don't think you're being realistic at all. There is nothing to indicate such.

And no one is ignoring you. I don;t see where you get that.

 

Which I'll read as the foretold suggestion that I should move. And you already have my reaction to that suggestion.

Take off the damned rose-colored glasses, get out of the echo chamber, read or listen to the oral arguments, look at where the LAW stands vs. public opinion, and I will firmly disagree with you about who is or isn't being realistic.

From the actions of activists on the issues. After getting protections written into local and state laws for themselves, they marched onward to the marriage issue. A case of "we've got ours, screw the rest of you stuck in the Midwest". They did so without helping us finish the job of getting protections in the remaining states. They did so with no consideration whatsoever for the damage they could do to us by moving too fast onto marriage. Know what happened? Opponents made a connection between anti-discrimination laws as a gateway to marriage, and threw the emergency brake on the rest of us. So a minority within the minority got protections, and even fewer got civil unions, marriage, etc. - AND WE GOT NOTHING! And they still aren't listening to us.

 

Wait just one minute- you're going to now blame others for work you failed to do? Are you serious?

 

Not work we failed to do. Work their actions short-circuited. Not to mention sucking away our resources for their fights and giving nothing back when our turn came.