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Erwin Chemerinsky’s prediction on the Prop 8 case before the Supreme Court

Prop 8 trial

By Adam Bink

I lift out Chemerinsky’s essay from the symposium on marriage equality at SCOTUSblog which many of us have been following with great interest because he, perhaps more than anyone else who has contributed has written, argued and thought so much on this issue. Chemerinsky is the dean of the law school at UC-Irvine. An excerpt from his essay, which closes the symposium:

The second major question that has been debated in these essays concerns the role of the judiciary.  I was surprised that even William Eskridge, a supporter of marriage equality, urged the Court to observe the “passive virtues” and declared:

“[I]f the Supreme Court were to take the Perry appeal and reach the merits, the Court ought to issue a narrow opinion that would not purport to settle the constitutional issue one way or the other.”

I very much disagree.   It is the role of the judiciary to interpret the Constitution and especially to enforce its protections of liberty and equality.  Laws that prohibit same-sex marriage deny gays and lesbians of the right to marry and discriminate against them solely based on their sexual orientation.   It is the judicial role to strike such laws down, just as the Supreme Court did in Loving v. Virginia (1967), in invalidating state laws that prohibited interracial marriage.   I do not see how the judicial role is any different relative to laws denying marriage equality to gays and lesbians.

Deborah Hellman writes that the Court should do so based on equal protection, but not based on the right to marry.   She asks whether a court should be defining marriage.  But the Supreme Court already has held that there is a fundamental right to marry.  Thus courts must define who is entitled to that right.   To say that marriage has always been between heterosexual couples is no more determinative of the constitutional question than it was to say that marriage in Virginia had always required a same-race couple.

Marriage is ultimately about a couple expressing love and commitment and then receiving the benefits the law bestows on those who do so.   It has no more to do with the gender of the members of the couple than their race.  I agree with Hellman that the Court should find laws denying marriage equality to violate equal protection, but they also deny the right to marry to same-sex couples.

Finally, there is the question of what the Court is likely to do.   Perhaps it is that concern which underlies William Eskridge’s plea for the passive virtues.   Other supporters of marriage equality, such as David Cruz, express doubts about whether there is a majority on the Court to find a constitutional right for gays and lesbians to marry.

I continue to believe that the Court will rule, five-to-four, in an opinion authored by Justice Anthony Kennedy, that laws prohibiting marriage equality violate the United States Constitution.  Kennedy wrote the Court’s opinions in Romer v. Evans (1996) and Lawrence v. Texas (2003), and I think that he will see his longest-lasting legacy from over a quarter of a century on the Court being in the area of eliminating discrimination against gays and lesbians.   I believe that his opinion will emphasize, as he did in Romer and Lawrence, the absence of any legitimate interest for prohibiting marriage by same-sex couples.  As in Lawrence, and other opinions, he will point to the trend across the world.

Ultimately, the question for Justice Kennedy, the Court, and society is whether gays and lesbians are entitled to equal dignity and equal treatment under the law.  There is only one possible answer to that question.


  • 1. Ann S.  |  August 30, 2011 at 8:18 am


  • 2. Steve  |  August 30, 2011 at 8:24 am

    What they should do and what they will do are two different things. The problem is that the Supremes don't like to get too far ahead of public opinion. With interracial marriage and anti-sodomy laws, most states had already struck down their bans on their own. But there are far too many marriage-bans in effect for them to issue such a far-reaching ruling

  • 3. FlexSF  |  August 30, 2011 at 8:32 am

    How could the hairy grease ball, Antonin Scalia, not rule in favor of Perry? Didn't he admit in his emotional descent in Lawrence that there is no justifiable reason to oppose gay marriage?

  • 4. Adam Bink  |  August 30, 2011 at 10:12 am

    Scalia is speaking at my alma mater reunion in October. Maybe I'll pose that to him.

  • 5. Sagesse  |  August 30, 2011 at 10:18 am

    Will the speech be broadcast :)?

    Is there a smiley face for impishness and insolence?

  • 6. Elizabeth_Oakes  |  August 30, 2011 at 2:54 pm

    😉 The mischief face for you, Sagesse.

  • 7. Sam_Handwich  |  August 30, 2011 at 11:28 am


    Scalia dissenting in Lawrence:

    "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding"

  • 8. Steve  |  August 30, 2011 at 1:09 pm

    The better quote is this:

    "If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct…what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "the liberty protected by the Constitution"? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry."

  • 9. Ann S.  |  August 30, 2011 at 11:31 am

    I don't think for one minute that Scalia will let something like intellectual consistency get in the way of his voting against marriage equality.

  • 10. luke  |  August 30, 2011 at 8:38 am

    I beleive that the reason they haven't touched the issue is becasue, they know there is no good reason to keep these bans. based on other rulings anywhays. if they said that that gays have no right to marriage, then they are in effect invalidating every single ruling on marraige the court has ever made. if gays have no right, then what is to say blacks have a right, or prisoners or ever divorcees etc

  • 11. Alan_Eckert  |  August 30, 2011 at 8:44 am

    5-4 is still a win, and the least we have been predicting for a while. One can only hope that we get at least a 6-3 vote.

  • 12. Ronnie  |  August 30, 2011 at 8:47 am

    Subscribing & sharing…………..

    Lawrence King Murder Discussed on HLN as Jury Continues Deliberations in Trial of His Killer: VIDEO

    (me) Brandon McInerney warned his peers the day before that he was going to kill Lawrence, he packed up the gun with the sole person of bringing it to school to shoot Lawrence, he admitted that he wanted to kill Lawrence to police & the psychiatrist….. It was premeditated murder…..If it was "panic" there are plenty of in-class-room supplies that could easily be used as a weapon that he could have grabbed at any moment in which he would "panic"….. No question, hands down, premeditated murder…… > I …Ronnie:

    Here is the video/interview of attorney Lisa Bloom, Advocate editor Neal Broverman, & Judy Shepard with Headline News' Chis Jacobs:
    [youtube _zb33A90L2k youtube]

  • 13. Sheryl_Carver  |  August 30, 2011 at 9:00 am

    OT, but our "friend" Louis Marinelli apparently isn't a very steadfast friend.

    I'm guessing that Louis is going to take a while before he figures out exactly what he DOES believe in. I wish him luck.

  • 14. Alan_Eckert  |  August 30, 2011 at 9:11 am

    I read his post when he whined about LGBT people and allies chastising him for his other political beliefs. I wanted to respond, but not so much that I wanted to sign up on his blog. He fails to realize that he has put himself out in the open as an important personality in the LGBT movement, and not anything else (yet). He used his LGBT platform to try and discuss his other thoughts on politics and expected to not be criticized. He claims that since any LGBT law does not affect him that he should not have to list it high on his priorities above other viewpoints, but he was the one who actively worked on spreading lies about and diminishing the role of LGBT citizens in America.

    If he wants to have a public political voice and still forget about his past work, then he is not my friend.

  • 15. fiona64  |  August 30, 2011 at 9:37 am

    I was very disappointed by his behavior in those whiny posts His site is now blocked at work due to sending out netbots, so I haven't read anything in a while. However, the gist of his complaint was "I vote straight ticket Republican, so I don't care what they think about LGBT issues. I'm not affected." That was his explanation, and I accepted it for what it was — but I definitely took it to mean that he was not nearly the supporter of equality that he wanted us to believe. Louis seems to spend a lot of time trying not to have people pick on him.

    Louis (I assume you're still reading here), I always say the same thing: your right to express an opinion does not guarantee you an approving/doting/silent audience. People are going to ask you questions. If you don't want to defend your position, cease being a public figure. Period.

    Bless your heart. And today? I mean it in the Southern sense.

  • 16. Ann S.  |  August 30, 2011 at 9:53 am

    I couldn't take the drama of the whiny posts and went to unfriend Louis on FB, but he had already unfriended me. Fine, I had accepted the friend invitation somewhat hesitantly anyway. Have fun with Gov. Goodhair, Louis, and don't be surprised if many of us keep attacking Perry for his anti-LGBT, wacko Dominionist flip-flopping policies.

  • 17. Alan_Eckert  |  August 30, 2011 at 9:57 am

    and anti-science, but that's most of the GOP field (there are a few out there like Huntsman who are pro-science!)

  • 18. RWG  |  August 30, 2011 at 2:54 pm

    …and his garden variety political corruption. He became a millionaire while working in public service. The guy is dirty and has too many slimy friends in the Texas power structure to ever be trusted , not even as dog catcher.

  • 19. Ronnie  |  August 30, 2011 at 9:32 am

    *cough*opportunist*cough*……. ; ) …Ronnie

  • 20. Elizabeth_Oakes  |  August 30, 2011 at 3:11 pm

    Louis believes in Louis, I'm guessing, and seems to me he's angling to be some sort of political wonk or media Rolodex reference in the future. That's fine, though if he goes back to hatemongering he'll be criticized not only as a homophobe but also an opportunist turncoat. That's an asset in some circles, though.

    Fortunately the world's a big place and the tide is turning our way. Good luck trying to turn it back.

  • 21. Kate  |  August 30, 2011 at 3:27 pm

    Interesting ….. his primary web site is no longer up. Temporary glitch? Hmmm.

  • 22. Ronnie  |  August 30, 2011 at 9:08 am

    And there you have it folks…..

    American Family Association Calls For Recriminalization Of Homosexuality

    American Family Association Wants All American Gays To Be Tossed In Jail

    AFA's Bryan Fischer Wants Homosexuality Recriminalized Again in all 50 States….

    (me) This, the Anti-American FASCIST Association, is who the RATpublicans running for President & NOM et al have aligned themselves with….. This, joined with NOM's Presidential Gestapo….. I mean "Commission"…is anti-American, inhuman, & souless…….. This is what I have to say to that…

    You will put LGBT human beings in prison for being LGBT…OVER MY DEAD BODY!!!!…. > I …Ronnie

  • 23. Carol  |  August 30, 2011 at 9:20 am

    I have always admired Chemerinsky. Here, he makes a very straightforward and persuasive argument about why SCOTUS should address the right to marry now and not wait a decade or so.

  • 24. I_T  |  August 30, 2011 at 9:23 am

    I am not sanguine about SCOTUS. A timeline of marriage in CA

  • 25. juliecason (JC)  |  August 30, 2011 at 10:52 am

    That's a great graphic timeline. Sad content, but a useful tool– Thanks for sharing. (And somehow, I hit the green thumbs up button but it registered as a minus one. I didn't mean to do that!)

  • 26. Alan_Eckert  |  August 30, 2011 at 9:47 am

    If David Blankenhorn had a problem with the video, he surely had no problem going on PBS NewsHour yesterday!

    Video plus transcript at the link.

  • 27. fiona64  |  August 30, 2011 at 10:16 am

    Oh noes! They will know what he looks like and sounds like!

    Stranger danger! Stranger Danger.

    @@ <– That's my eyes rolling, right there.

  • 28. Ronnie  |  August 30, 2011 at 10:19 am

    ROFL….. XP…Ronnie

  • 29. Alan_Eckert  |  August 30, 2011 at 10:34 am

    It's ironic that he was on TV the same day we were in court trying to get him on TV.

  • 30. Regan  |  August 30, 2011 at 10:17 am

    I have some points to make on both the murder trial of Brian McInerney, and the SCOTUS decision.

    There is something of EXTREME importance in discussing the 'gay panic' defense that is being lost here.
    The perception of what a pass is at all. Apparently, there doesn't have to be ANY evidence that any such thing ever occurred. But the state of mind, of someone determined to assault a gay person, requires that any contact was made by the victim to the perp whatsoever.
    In other words, the gay panic defense reverses who is the victim and the motive for contact at all.
    This allows the perpetrator of violence on a gay person to ASSUME interest, regardless if there was any whatsoever.
    Let's be VERY cognizant of what that means, and how it MUST be discussed.
    When someone is taught to and allowed to so dislike and distrust someone gay, that they perceive casual contact as violation. They respond to a look, or a greeting as 'sexual harassment or attack'.
    We cannot stress enough the exaggeration of what that gay person actually EVER did. Sometimes they are acquainted with their victim superficially. And often enough, the perpetrators COME ALREADY armed, as did McInerney, indicating a pre plan of assault and malice aforethought.

    As Lisa Bloom touched on, but lightly, there was very real murder and casual violence on black males throughout the Jim Crow south, on the mere ACCUSATION of interest in a white female. Regardless that no such thing had to take place. Do speak, don't touch, look AWAY was how very young black boys were trained when it came to such contact in order to save their lives. The bullying of blacks by whites for their amusement is well documented as is the same for gays and lesbians.

    Gay young people shouldn't have to be trained to avoid heteros on the likelihood of similar casual violence. AVOIDING someone committed to bullying is virtually impossible, as is the inevitable likelihood of contacting a gay person for any reason.

    The discussion of Larry's murder, is still positing the issue in that Larry actually MADE a pass, or was it a REACTION to McInerney's constant verbal assaults? McInerney, in fact was much bigger than Larry and knew he could physically intimidate him. And King was afraid of him.
    This was a small campus and a lot of what was going on with McInerney in that environment was by default. If he could have, he would have made his social contacts ALL white, ALL straight, with few females except those he could also abuse any way he felt like.
    We cannot stress enough that the interpretation of a pass, is actually none at all by the typical definition.
    A determined hater needs NO provocation.
    The gay panic defense is assuming there was more provocation than just the mere presence of who the hater was determined to assault.
    Using assumed provocation as a means of lessening an appropriate sentence is also assuming in some way, the victim deserved his fate.
    And yes, THAT is why the gay panic defense, however LUDICROUS is it against the evidence to the contrary might still work.
    Absolutely disgraceful.

  • 31. Michael in SF  |  August 30, 2011 at 1:38 pm

    Many, many people should read what you wrote here. Gay panic defense is about as reasonable as the Twinkie defense. That argument, which reverses the roles of victimization, makes it possible for the court/a jury to sympathize and rationalize that the crime was committed in "self defense". "Defense from what?", I ask. And even if that was acceptable (IT IS NOT!) they overlook the "defense" as being completely out of proportion to the perceived "threat". It's intolerable and so frustrating that some bonehead can believe these types of actions are justifiable.

    Can a woman use some kind of "panic" defense to justify killing a man who made unwanted advances? I don't think so, not unless her life was in danger. And I'd bet that in most cases, the threat to her is greater than the threat to a male homophobe. Stop giving violent psychopaths a pass!

  • 32. fiona64  |  August 30, 2011 at 3:28 pm


    I had someone try to defend the "gay panic defense" to me by saying "What would you do if a lesbian asked you out?" My response was "Well, when it happened … because it did … I told her the truth. That I was flattered at her interest but must decline. When she asked me why, I told her I was straight. Do you know what she said? She thanked me for being so nice about it. It's no different than declining a date with a man in whom I am disinterested. There's no reason to be nasty, or to be violent."

    Their subsequent response was a long silence, followed by "Oh."

    I then went on to say that I had been far more annoyed during the course of my life by straight men screaming their "Yahoo" cat calls and making remarks about my anatomy than I *ever* was by a lesbian asking me out for dinner and dancing … and they had absolutely *nothing* to say in response to that.

  • 33. Regan  |  August 30, 2011 at 10:32 am

    Regading the SCOTUS decision.

    The defense of state and the Constitutional amendments requires that the role of gender is as it was decades ago. That women have a certain role, and that men do. None of which is determined or limited in the laws of marriage anymore. Especially since women are now autonomous and no longer subject to their husbands.
    As for what passes for defense of the standard of only men and women: is also not a matter of legal discrimination now.
    For example:
    1. The assumption of children requiring a mother and father to have the ideal life.

    2. That marriage is limited only to those whose intention or ability is having children.

    3. That marriage has a morality, competence and religious test to qualify.

    4. That the inclusion of gay couples will render marriage to have no further limits on 'any and all' marriages with regard to things that have nothing to do with being gay, such as kinship and multiple spouse marriages, marriage to inanimate objects and children.

    5. The assumption that there is no precedent in the handful of states or entire countries like Canada, Spain, South Africa that equal marriage has had a widespread, negative effect on these respective places.

    6. The assumption that there is no historical precedent on the negative effects of multiple spouse, and minor age marriages, and that non consent marriages can never be legal.

    7. That in discriminating against gay people using state and federal Constitutions to do so, enshrines discrimination inappropriately. But also violates several well established amendment clauses with regard to citizenship, civil laws, rights and protections.

    8. That as stated, there is no rational reason TO exclude gay couples from any of this and that all stated reasons, defenses and objections ALL apply to heteros as well, therefore illegal and un Constitutional on face. And are clearly religious based animus, not facts and evidence. And since religion has been used before to deny human and civil rights to suspect minorities before, regressing back to such reasons wouldn't be fair or acceptable when it's not applied anymore for similar reasons to previous minorities or non believers.
    I'm no legal scholar, but it seems straightforward enough in the law that even I can understand it.

  • 34. Alan_Eckert  |  August 30, 2011 at 10:33 am

    OT, but I want to share a great story about a school superintendent in Fresno, CA.

    Larry Powell is giving up a $288,241 salary plus benefits for a $31,020 salary without benefits for the next three years (until he retires) so the leftover $830,000 can go to the schools instead. He is a great leader who is thinking less about himself and more about the teachers and students he oversees. I just sent him an email thanking him, and he can be reached at [email protected] (from the school district webpage).

    As my friend Jim said, "If our political leaders acted like this it very well might motivate the rest of the country to try to work together for the greater good and maybe get something constructive done for a change."

  • 35. Alan_Eckert  |  August 30, 2011 at 11:09 am

    I wrote Larry Powell an email this morning, and he just wrote me back =):

    I am so grateful for your kind words. I simply wanted to protect some programs that I believe are essential if our students are to be successful and feel good about school. They must be safe (Rachel’s Challenge, an anti-bullying program out of Colorado). They must have the opportunity to go to college if they wish (AVID Advancement Via Individual Determination). They must be allowed to be creative and innovative (The Arts, music, drama, dance, art, and career tech). They must be prepared for school (PreSchool and Transitional Kindergarten). Thanks again for your contacting me.

  • 36. Paul  |  August 30, 2011 at 10:35 am

    I'm not a friend of Blankenhorn, but I really haven't heard much coming from him indicating he opposes marriage equality…yet he was "their big expert witness". He seems benign to me and almost willing to acknowledge the truth that gays should be treated equally. So, how did he help the proponents of Prop 8?
    If he did, I must be missing something and would like to be enlightened. Anyone??

  • 37. DaveP  |  August 30, 2011 at 11:24 am

    This is one of the main reasons the Yes on 8 folks do not want the trial tapes released. They know how bad their own witness made them look. You're not missing anything – and you're seing exactly what they don't want you to see.

  • 38. dwpiper  |  August 30, 2011 at 10:46 am

    Totally off-topic, but I just felt the need to share:

    My husband-in-all-but-name-due-to-prop-h8 was at the grocery store, and out of the clear blue sky a straight man (appeared to be in his late 20's) with his two young children in tow walked up to him and said, "I just want you to know that I'm totally in favor of you folks having the right to marry."

    We've been floating on a cloud over that.

    (Of course, my man was a bit taken aback that some stranger knew he was gay just by looking at him – I had to remind him that str8 people can have functional gaydar too. (grin))

  • 39. Carpool_Cookie  |  August 30, 2011 at 2:02 pm

    How nice that he said kind words with his children in tow, too! This sounds like a good parent : )

  • 40. dwpiper  |  August 30, 2011 at 2:32 pm

    I still get teary-eyed every time I think about it.

  • 41. Bob  |  August 30, 2011 at 12:07 pm

    So where was Maggie's post on Scotusblog? She was on the original list.

  • 42. Phillip R  |  August 30, 2011 at 3:25 pm

    I've been keeping an eye out for it but of course nothing. Honestly, with the rather pro-equality turn the legal minds have taken over there, I wouldn't be surprised if she tucks her tail between her legs and doesn't submit anything.

  • 43. Carol  |  August 30, 2011 at 9:30 pm

    Here's a practical solution for Judge Ware: ask the witnesses if they are willing to have their video testimony made public. Plaintiffs and all their witnesses will say yes. David Blankenhorn will probably say yes, because he's not shy. William Tam, who is the only one who made a fool of himself, can keep his testimony secret for all anybody cares. ProtectMarriage and AFER have no vote. Voila, problem solved.

  • 44. Ann S.  |  August 30, 2011 at 9:35 pm

    It did seem possible that he might call for an evidentiary hearing, when he would have a chance to explore with the witnesses whether they might feel intimidated or threatened if their testimony were to be released. I doubt he'll go to that length, but it's possible.

    Of course, the proponents are trying to claim that they want to keep the recordings under seal because hypothetical future witnesses in some hypothetical future hearing might be intimidated if they could not depend on a judge's assurance that their testimony would remain under seal.

    Tam, by the way, was not a witness, although some of his deposition testimony was played at trial. The two witnesses for the proponents were Blankenhorn and Kenneth Miller.

  • 45. Leo  |  August 30, 2011 at 9:55 pm

    Tam was a hostile witness for the plaintiffs. He testified on day 8 of the trial.

  • 46. Ann S.  |  August 30, 2011 at 10:01 pm

    My mistake. Thanks for the correction.

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