March 25, 2013
By Jacob Combs
After literally years of waiting, we’re finally at one of the last big moments in the Prop 8 case.
Tomorrow, at 10 a.m., the Supreme Court will hear oral arguments about the constitutionality of California’s marriage equality ban. The next morning, it will consider whether Section 3 of the Defense of Marriage Act, which limits federal marital benefits to opposite-sex couples, is constitutional.
We’ve been following this case, as a community, since its very first day in a district court room in San Francisco. I’ve said this before, and I’ll say it again: it’s an honor to write for you, to hear your thoughts, and to be part of this historic moment. I’ll be in the courtroom feverishly taking notes from the press section, which is beyond exciting.
Please do comment on our posts from DC this week, and we’ll do our best to get back to you on any questions or feedback you have. For those of you who are Twitter folks, you can follow me at @jacobdcombs, Scottie at @indiemcemopants, and Adam at @adamjbink. And, as always, feel free to email us!
Here are some thoughts on what’s worth looking for tomorrow, and Wednesday, during oral arguments.
The Justices’ demeanor
As Georgetown Law professor Nan Hunter pointed out in a recent blog post on the Supreme Court, most lawyers who argue before the high court believe that cases are won and lost in the briefs, not during oral arguments. That means that the pages and pages of legal arguments submitted by the proponents of Prop 8, the plaintiffs represented by Ted Olson and David Boies, and the myriad outside groups who filed friend-of-the-court briefs have likely set the stage already for the Justices’ ultimate decision.
With that in mind, while it is tempting to read into the Justices’ words and actions during oral argument, such mind-reading can often be wildly off the mark. Remember that Jeffrey Toobin walked out of the oral arguments for Obamacare last year and called them a “train wreck,” saying that the law “looks like it’s going to be struck down.” The Court later largely upheld the law 5-4.
The Justices’ questions, then, can sometimes function as an attempt to persuade other Justices of the validity or weakness of specific arguments. For this reason, a Justice leaning towards one ruling might very well ask critical questions of the lawyer presenting that position precisely in an attempt to probe all the holes in the argument so that another Justice might be encouraged later to adopt it.
The long and short of this is that while there will likely be much discussion of the Justices’ tone and demeanor during oral arguments (and yes, we’ll probably talk about it on our blog, too), it’s best to remember that there is much more to a Supreme Court opinion than whether Justice Kennedy was frowning when Ted Olson started to answer his third question.
The opening bid
As Hunter points out, oral arguments largely represent an opportunity for the lawyers on both sides of a case to keep the discussion focused on the strongest points in their arguments and to steer the Justices away from potential pitfalls in their legal reasoning. Since the Justices can–and almost always do–frequently interrupt the lawyers arguing before them, each lawyer will use his or her opening sentences, right up to that first interruption, to present what he or she considers the strongest argument to persuade the Justices.
For Charles Cooper–the attorney for the Prop 8 proponents, who will be the first to address the Justices–that will likely mean a strong emphasis on the biological fact that same-sex couples cannot reproduce naturally. Cooper has consistently argued that Prop 8 can be defended as an attempt by California to channel heterosexual sex into marriage (the so-called ‘responsible procreation’ rationale), and he is likely to rely heavily on that point once again.
For Ted Olson, representing the plaintiffs, expect a focus on love, commitment and the irrationality of California’s offering the rights of marriage but not the name to same-sex couples.
In the DOMA case, Paul Clement, representing the Bipartisan Legal Advisory Group, will probably focus on his argument that DOMA can be defended with the understanding that it created a uniform, federal definition of marriage and that it was enacted to allow the states to ‘experiment’ with marriage equality without affecting the federal government. He will likely also address the responsible procreation argument.
Edie Windsor’s lawyer, Roberta Kaplan, on the other hand, will likely point to the irrationality of DOMA’s enormous financial burden on Windsor simply because she was married to a woman instead of a man, and the equal protection violation implicit in such a capricious distinction.
Standing versus the merits
As any longtime follower of both the Prop 8 and DOMA cases knows, there are significant questions of standing and jurisdiction in both cases that are important threshold issues to whether the high court can even consider the two laws on their merits. In the Prop 8 case, the question is whether the proponents of Prop 8 have standing to defend the law in the place of California’s elected officials; in the DOMA case, there are two questions: whether the Bipartisan Legal Advisory Group can defend that law after the Justice Department announced it would not, and whether the Supreme Court has jurisdiction to hear a case where the plaintiff and the defendant want the same outcome.
For the DOMA hearing on Wednesday, the Court has specifically lengthened oral argument, providing 50 minutes to consider the jurisdictional questions and then an hour to consider DOMA on the merits. For the Prop 8 hearing on Tuesday, however, it has made no such distinction, simply leaving an hour for all argument. It will be very intriguing, if (once again) not predictive, to see how the Court divides its time on these issues in the Prop 8 case.
For instance, if the Court spends most of its time asking about the proponents’ standing, or if Charles Cooper ends up defending his clients’ right to pursue the appeal instead of defending Prop 8 itself, it could mean that the Court is leaning towards a very limited decision that does not rule on the law’s constitutionality. On the other hand, the fact that the Justices did not set aside time for the standing question during the Prop 8 hearing could mean they think it needs less examination than the jurisdictional issues in the DOMA case. As always, it’s wise not to read too much into this.
If I were a betting man…
I’m not, so this is sort of an academic exercise, but I figure it’s worth putting this down on the record before oral arguments, which might change my thoughts. From the briefs themselves, and the fact that the Supreme Court decided to take up the Prop 8 appeal when many observers (myself included) thought they would not, here’s my prediction.
While I have pretty serious doubts about the proponents’ standing under Article III, my doubts stem for the most part from the California Supreme Court decision (issued at the Ninth Circuit’s request) that the proponents do have standing under California law to represent the state’s interest in defending Prop 8 since they helped put it on the ballot. The California Supreme Court declined to even consider whether the proponents would suffer any personal, particularized injury if Prop 8 was invalidated.
Yes, that opinion is only advisory, and the Supreme Court can make its own determination of the proponents’ standing under federal law. But my gut says that they’ll defer to the California Supreme Court’s logic and put off (yet again) any finality on whether ballot proponents have federal standing to defend the law’s they’ve championed.
That means I do think Prop 8 will be decided on the merits, and I do think it will be struck down 5-4 or perhaps 6-3 (with Chief Justice Roberts joining Justice Kennedy’s opinion), depending on the scope of the decision. I’m skeptical we’ll see a nationwide, fundamental right to marriage equality, but I’m also skeptical the Supremes will adopt the Ninth Circuit’s argument whole cloth. So I think we’ll probably see something new in the reasoning here that gets us to invalidating Prop 8 but not invalidating marriage equality bans across the country.
In the DOMA case, I highly doubt the Court wants to set up the legal chaos that would ensue from a decision that it has no jurisdiction to consider DOMA’s constitutionality. That would mean, essentially, that until a trial court upholds DOMA, or a new Justice Department decides to start defending the law again, there could be no final judicial determination on the law. Simply put: it would be messy.
I do think this means that the Court will likely elide the issue of whether BLAG has its own standing to appeal. If the Court can hear the case just on the basis of the continued dispute between Edie Windsor and the federal government as to the tax refund, BLAG gets to piggy back on the case, and that question does not get explicitly answered.
Since Judge Joseph Tauro became the first district court judge to strike down DOMA, I’ve been thoroughly convinced that the law’s days were numbered. Now that several other district court judges and two circuit courts have invalidated it, I have very few doubts that the Supreme Court will do the same. I would be surprised if Roberts didn’t vote against DOMA, and I actually think there’s a chance he will write the opinion himself if he does join it. There may be some other surprise votes here against DOMA, since there is a states’ rights component that the conservative Justices may be swayed by.
In the end, though, Professor Hunter says it best: “Is anything a safe bet? Justice Thomas won’t give anyone the satisfaction of asking a question; Justice Scalia will say something sarcastic; Justice Sotomayor will jump in with both feet. Beyond that, I’m not betting on anything.”