Proposition 8 on Trial

Today the U.S. Supreme Court heard arguments for and against Proposition 8, the California constitutional amendment which bans gay marriage in that state. It also heard a compromise argument from the U.S. government. I read a transcript of the whole discussion and was fascinated.

General Thoughts on Reading Supreme Court Arguments

First of all, everybody who speaks is deeply intelligent. No matter what you think of the two sides in the gay marriage argument, you have to be impressed by the preparation, quick-thinking logic, and clear rhetoric of everybody involved. The transcripts preserve every stutter, so you notice how few of them there are. Some justices (like Samuel Alito) can deliver entire speeches as if memorized. There’s only one slip-up in all the eighty pages, when the Proposition 8 attorney (that is, the attorney who supports the gay marriage ban) forgets a precedent case and Ruth Bader Ginsburg has to explain it.

MR. COOPER: It’s — yes, Your Honor. And well, forgive me, Your Honor. I’m not sure I’m following the Court’s question.
JUSTICE GINSBURG: I may — my memory may be wrong, but…

Of course, her memory’s correct, or if it’s wrong, she’s not corrected.

There’s another thing. These people interrupt each other constantly. It’s standard procedure; justices even interrupt other justices.

The People

Charles J. Cooper. Defending Proposition 8, Cooper’s main argument is that the government can regulate marriage, and who can get married, because it’s in society’s interest to manage procreation, and marriage is essential to procreation. At one point he even says that society “has an interest of [sic] seeing any heterosexual couple that intends to engage in a prolonged period of cohabitation to reserve that until they have made a marital commitment.”

Nobody asks him if this means that states could ban unmarried cohabitation, but Justice Ginsburg points out a previous ruling that established the right of life-without-parole prisoners to marry non-prisoners with whom they’ll never have a chance to procreate. Elena Kagan argues that barring gays from marrying because they can’t procreate would also endanger the marital rights of senior citizens, but this gets bogged down in a debate over how often old people have babies.

The wind comes out of Cooper’s sails immediately, when he begins this way:

MR. COOPER: New York’s highest court, in a case similar to this one, remarked that until quite recently, it was an accepted truth for almost everyone who ever lived in any society in which marriage existed -­
CHIEF JUSTICE ROBERTS: Mr. Cooper, we have jurisdictional and merits issues here. Maybe it’d be best if you could begin with the standing issue.

Translated into non-lawyer: “The traditional definition of marriage everywhere is…” “We don’t care.”

Theodore Olson. The attorney hoping to strike down Proposition 8 shows an easy familiarity with the Supreme Court setting, probably because he was solicitor general under George W. Bush. He’s still a conservative, by the way, but at one critical juncture buckles under attack from Antonin Scalia.

Donald Verrilli. The current Solicitor General makes an argument which Justice Sonia Sotomayor calls ironic. Basically, it’s this: if a state gives gay couples full rights (tax benefits, health benefits, adoption rights, etc.) but offers civil unions instead of marriages, as in California, this is a “separate but equal” scheme like segregated schools, and unconstitutional. But if a state gives gay couples no rights, let alone marriage, it’s “separate and unequal.” He constantly refuses to say whether that’s constitutional.

The result is that, awkwardly, California’s granting of all rights except marriage to gay people makes it unconstitutional, but other states can keep banning gay marriage as long as they’re also banning gay adoptions. Verrilli does indicate that the government would probably side against that, but that a new court case would be needed, with new arguments.

Antonin Scalia. Aggressive, rambunctious, and caustically funny, Scalia often goes on bizarre rants. When Cooper can’t come up with any good reasons to keep gays from marrying, Scalia steps in to help him out. He gets in a sarcastic reference to Roe v. Wade‘s establishment of a right to privacy. He grills Olson on when, exactly, gay marriage bans became unconstitutional, demanding a day and time.

JUSTICE SCALIA: When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?
MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?
JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question.
MR. OLSON: It was constitutional when we -­ as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that –
JUSTICE SCALIA: I see. When did that happen? When did that happen?
MR. OLSON: There’s no specific date in time.

As I’m sure you’ll notice, Olson’s rather inspiring rhetorical question was deflated down to a sad little squib. Not surprising, since Antonin Scalia’s views on gay rights are well-known.

Another, better rhetorical question came from…

Anthony Kennedy.

JUSTICE KENNEDY: …there is an immediate legal injury or legal — what could be a legal injury, and that’s the voice of these children. There are some 40,000 children in California, according to the Red Brief, that 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, don’t you think?

Kennedy seems inclined to rule on California’s Proposition 8 without extending the ruling to apply to the United States as a whole.

John Roberts. The Chief Justice is by far the politest, kindliest justice; sometimes he even apologizes when he interrupts. Roberts is alarmed by the possibility of banning gay marriage bans across all 50 states, and asks Verrilli a lot of questions which seem designed to give him the logic needed to strike a compromise decision killing Proposition 8 but maintaining the national status quo. As a conservative, Roberts might like this outcome: it solves the issue at hand in a humane way (he’s concerned about the adopted kids, as Kennedy is) while retaining the states’ power to come up with their own solutions.

Clarence Thomas. As always, Clarence Thomas is silent.

The Themes

The Proposition 8 supporters contend that the government has an interest in legislating matters related to procreation, such as the right of non-procreating couples to obtain marriage licenses. This is frankly ludicrous, and the liberal justices are highly skeptical.  Opponents argue that this is an equal rights issue, which comes under fire in two ways: first, concerns about whether the California case is applicable to the whole country, and second, Scalia’s stuff about what exact date gay marriage bans became unconstitutional. There’s some concern about the fact that the Ninth Circuit Court’s ruling, striking down Prop 8, is hardly cited at all by the team that’s supposed to be agreeing with it.

The U.S. government’s proposed compromise, that Proposition 8 be kept down and gay marriages be allowed in California but other states remain free to experiment, seems tailor-made to appeal to John Roberts.

There is considerable debate over whether the proponents of Prop 8 should even be allowed to argue for it, since they’re private citizens, and several justices wonder why the heck California won’t show up to defend its own constitution.

The Likely Outcome

Anthony Kennedy sympathizes with the gay rights cause. He speaks up for the adopted kids and he throws a blanket on Scalia’s fearmongering suggestion that gay parents are bad at raising children. At one point he even traps Charles Cooper in a corner where Cooper looks to be admitting that straight couples would be unharmed by an expansion of marriage; Cooper’s reply is feeble, that there are unknown consequences to gay people getting married.

John Roberts is harder to make out. He seems less worried about gay rights and more about the national consequences of a Proposition 8 decision. I get the impression that he is trying to see what compromise tightrope can be walked–like the one he found on Obamacare.

The case could be thrown away on the technicality that the pro-Prop 8 legal team isn’t qualified to defend it, but there was a similar technicality brushed off in the Obamacare decision because the justices wanted to issue a clear ruling. There’s evidence here that they feel similarly.

My Best Guess

I’ll guess that the Court decides, 6-3, to let the Ninth Circuit decision stand, overturning Proposition 8. John Roberts or Anthony Kennedy will write a narrow opinion explaining the idea: that, in some form, the Court accepts Verrilli’s argument that California’s ban can be overturned without national implications. Thus civil unions will become marriages in California, but that doesn’t mean gay people can run out to get married in Texas just yet.

In a concurring opinion, somebody will urge a case from a state like Texas to come before the court to really answer the question once and for all. Even Antonin Scalia wants this issue cleared up. Cooper suggests that the Court let the American public debate gay marriage longer before deciding its merits, and Scalia retorts:

JUSTICE SCALIA: It’s too late for that, too late for that now, isn’t it? … “We should let it percolate for another -­-” you know, we — we have crossed that river, I think.

Hey, I agree.



Filed under Ill-Informed Opinion

5 responses to “Proposition 8 on Trial

  1. Caitlin

    Wow thank you! This was very helpful!

  2. Yes, this is wonderful! Thank you!

    One part that totally baffles me is what is the legal basis for the government having any say in procreation whatsoever…? (Never mind abortion, that’s a different part of the process.) Because when I think of procreation regulation I think of population control (which would give conservatives more than anyone an apoplectic fit), not this…there’s no requirement that married heterosexual couples be capable of procreating.

  3. Well, I don’t quite understand it either, but the argument seems to be that the government has an interest in preventing harm – specifically, if gay parents harm kids by adopting them. Of course, California allows gay adoption.

    This might partly explain why the pro-gay marriage attorney in this case is actually a conservative disciple of Reagan and GWB: it’s unnecessary government regulation!

  4. Caitlin

    My friend Steven said that part of the argument is kind of the slippery slope argument. If you want to extend the rights of marriage to gay couples, then are you also obligated to in cases of polygamy, incest, or bestiality? I think issues of consent would then come into play, but that’s part of the argument, I guess.

  5. Yup, Caitlin, that EXACT question came up! For what it’s worth, the reply was that polygamy and incest have track records and histories of abuse, coercion, neglect, and other red flags which are unusual in straight and gay monogamy.

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