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I just left the Supreme Court: here’s my first take on the Justices’ questions

Marriage equality Marriage Equality Trials Prop 8 trial Supreme Court

By Jacob Combs

UPDATE 2 (12:55 p.m.): Addressing the merits of the case and arguing against Prop 8’s constitutionality, Ted Olson repeatedly told the Court that marriage is a personal individual liberty and a fundamental right, and that procreation is not a part of that right.  Prop 8, he said, excludes gay and lesbian Californians from that right.

Chief Justice Roberts jumped in early, throwing cold water on the idea that Prop 8 ‘excludes’ gays from marriage and instead saying that marriage developed historically for reasons that gay unions do not forward (i.e., procreation).

The Chief Justice and Olson got into a bit of a weedy debate about whether the Prop 8 case would be different if the law had been passed before the California Supreme Court extended marriage rights to same-sex couples, with Roberts saying that if the timing had been different, Olson wouldn’t be arguing that Prop 8 excluded gays and lesbians from marriage.  Olson reiterated his point that marriage is a fundamental right, and said that while the argument in that case would be subtly different, it would still rely on the central question of whether the fundamental right to marry can be withheld.

Scalia asked Olson, “When did it become unconstitutional to exclude gays from marriage?”  Olson gamely responded, “When did it become unconstitutional to exclude interracial couples from marriage?”  Scalia testily pressed Olson for a specific date, which Olson refused to provide.

Kennedy in particular seemed very skeptical of the Ninth Circuit’s narrow argument striking down Prop 8 specifically in light of California’s unique history of marriage equality.  He characterized that decision as one that said that a state could only go all the way to full marriage equality as opposed to going part way and providing some rights.

Once again, Sotomayor stepped in and steered the arguments back to the central question.  If marriage equality is a right, she asked Olson, would any state restrictions on marriage survive, such as those on incest or polygamy?  Olson had a quick answer: polygamy is based on conduct while sexual orientation is based on identity.  Sotomayor also asked if there is any way the Court could limit its ruling to California.  Olson said such a ruling would be one in which the proponents were found not to have standing.

Speaking on behalf of the federal government, Solicitor General Verrilli underscored the administration’s belief that Prop 8 should be considered under heightened scrutiny, a more searching form of judicial review.  California’s laws, he argued, blow up the proponents’ claims that the state has an interest in reserving marriage to opposite-sex couples since California affords full rights to same-sex couples.

When pressed by the Justices as to whether Verrilli was calling for a nationwide right to marriage equality (and when asked how a ruling could be limited just to the eight states which currently provide civil unions or domestic partnerships), Verrilli said the administration was looking to keep the door open for different cases to arise from different states which might have their own reasons for denying marriage licenses for same-sex couples.

Significantly, there was very little discussion of the proper level of scrutiny to apply to laws that classify on the basis of sexual orientation.  This could mean that the Justices think the case will be decided on the basis of standing, or (more probably) that they believe the scrutiny discussion will be fully argued tomorrow during the consideration of the constitutionality of Section 3 of the Defense of Marriage Act in the U.S. v. Windsor case.

UPDATE 1 (12:25 p.m. Eastern): On to the merits! Charles Cooper had two central points: in the first, he put significant emphasis on the fact that there is an “earnest debate” happening across the country on marriage equality.  Cooper asked early on, rhetorically, if the Supreme Court should stop that debate, saying that it could only do so it if found that Prop 8 was entirely based on animus.

Cooper’s second point, of course, was his oft-repeated ‘responsible procreation’ argument.  Same-sex couples, Cooper contended, are not ‘similarly situated’ (a central component to equal protection consideration) to opposite-sex couples because only opposite-sex couples can procreate naturally.  Justice Kagan pointed out that Cooper had made an argument for not including same-sex couples in the institution of marriage (because marriages between same-sex couples does not explicitly further the state’s interest in responsible procreation), but asked whether he could justify a law that excludes them from the institution.

Kagan told Cooper she couldn’t find in his legal briefs any specific harms that would result from allowing same-sex couples to marry.  Cooper said that this notion of specific harms is not the central legal issue in the case, circling back to his earlier argument that restricting marriage to opposite-sex couples is justifiable because it furthers a state’s interest in responsible procreation.

Justice Scalia addressed gay adoption, saying that allowing marriage equality would require allowing same-sex couples to adopt.  Since some states don’t allow that, he said, could Cooper address any harms arising out of gay adoption?  If so, he implied, Prop 8 could be rationally defended.  Cooper demurred.  Justice Breyer then jumped in with a question that focused on California, asking how allowing marriage for gay couples in a state with same-sex adoption would deleteriously affect straight couples in any way that allowing sterile couples to marry would not.  Kagan picked up on this, asking if a restriction on age would be OK–say, a prohibition on couples over 55 marrying.  Cooper said that marriage would still channel such couples’ sexual activity in such a way that would encourage fidelity and responsible procreation.  In response to this, Justice Ginsberg pointed out that the Supreme Court has recognized a right to marry even for prison inmates with no possibility of procreating.

At one point, Kennedy pointed out that the sociological evidence about families headed by same-sex couples and whether there are any effects on children is new and not conclusive.  But in the very same sentence, he mentioned that there is a specific legal injury present in the case suffered by the almost 40,000 children living in California with same-sex parents.

ORIGINAL POST (12:10 p.m. Eastern): I just walked out of oral arguments at the U.S. Supreme Court and waded my way through a huge crowd of supporters in front shouting “equal rights under the law.”  It was a whirlwind hearing and all three lawyers faced tough questions from the Justices.  Here’s a first look at the Justices’s questions and what they might mean.

The biggest takeaway is that there was a serious focus on issues of standing and jurisdiction during today’s oral arguments.  Charles Cooper, representing the Prop 8 proponents, got in a few words before Chief Justice Roberts steered him towards addressing whether the proponents have standing to defend Prop 8.  The Chief Justice did the same to Ted Olson (who said, gamely, “I was trying to avoid that”) and Solicitor General Donald Verrilli, Jr., who was arguing the federal government’s position.

There was substantial concern on the parts of the Justices as to how to avoid a situation where an initiative such as Prop 8 could be nullified by an administration that did not agree with the law.  Cooper seemed to open the door to a very new, broad right to standing: when asked by Justice Kagan if a state could assign any citizen to defend its laws, Cooper responded, “It very well might.”

Ted Olson repeatedly assured the Court that a state could appoint an ‘officer’ that would defend the law, specifically pointing to the fact that that individual would understand and be obliged to keep in mind the financial burden faced by a state.  Justice Scalia was skeptical, asking whether that person would be appointed by the same administration that chose not to defend the law, but Olson reassured him that many administrations have done so in the past, even for laws that they did not agree with.

Ted Olson argued (picking up on a line of thought that Chief Justice Roberts had presented to Charles Cooper) that adopting the Prop 8 proponents’ argument on standing would essentially allow states to dictate Article III standing; that is, they could say that any individual could represent the interests of the state even without a personalized injury.  This would basically negate the whole point of Article III standing, which establishes a certain set of norms and guidelines under which cases can be brought to the federal courts.

Several times, Justice Sotomayor stepped in and said something to the effect of, here’s what all these questions are driving to, and here’s the fundamental issue you need to address.  On the standing question, Sotomayor asked Olson point blank: Who ensures that a law is defended if a state’s executive decides that it won’t do so?  Olson stuck to his guns, saying that the proponents of a ballot measure cannot possibly fully understand a state’s interests in a specific law, and that there would instead need to be some kind of appointment process where an administration which had chosen not to defend a law would delegate that task to a specific governmental individual.

During his time for argument, Solicitor General Verrilli underscored the fact that the United States had not addressed the issue of standing in its briefs and said that the federal government had “no formal position” on the issue.  Nonetheless, he said that the government leans towards the plaintiffs’ arguments and believes that the Prop 8 proponents lack the particularized injury to qualify for Article III standing.

As always, Justice Kennedy is almost certainly going to be the swing vote: none of the other conservative Justices appeared anywhere close to a ruling that would declare Prop 8 unconstitutional.  Kennedy’s questions on the merits were pointed and probed both sides.

This post will continue updating from the top.  Stay tuned for more!

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