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Answering some popular questions about yesterday’s Supreme Court arguments on Prop 8

Marriage equality Marriage Equality Trials Prop 8 Prop 8 trial

By Scottie Thomaston

Today, the Supreme Court is hearing Edith Windsor’s challenge to Section 3 of the Defense of Marriage Act. Jacob is in the courtroom and will have first impressions of the hearings after they conclude – today’s proceedings are an hour and fifty minutes long, and may actually go on for a bit longer, since no other case is scheduled for the day.

But I thought I would address some frequent questions we’ve received on yesterday’s hearing in the Prop 8 case.

If the Court says that Prop 8 proponents lacked Article III standing to appeal the case, would same-sex marriage return to California?

It’s a bit of a complicated mess. If the Court dismisses the petition as improvidently granted because the proponents lacked Article III standing to appeal, that would mean the Supreme Court nor the Ninth Circuit had authority to hear the case. But there is no issue regarding standing at the district court level – everyone in district court was a proper party and there was a “case or controversy” that Judge Walker’s decision resolved.

But there is a question over the scope of Judge Walker’s injunction. Proponents argue that it can only apply to the two couples who actually challenged Prop 8 in this particular case, but the Olson/Boies team say that the clear wording of the injunction means it should apply to all of California. And during oral arguments at the Ninth Circuit Court of Appeals, David Boies suggested that if the injunction were held to only apply to the two couples, there would likely be further litigation in an attempt to ensure uniform application of same-sex marriage across the entire state.

But immediately after the Court denies standing, the Ninth Circuit will issue its mandate.

How much time was spend talking about the jurisdictional issues versus the merits issues in the Prop 8 hearing yesterday?

Chief Justice Roberts deliberately asked all parties to start with the jurisdictional and standing issues rather than starting with the merits. So for all parties to the case, their initial time was spent on the issue of standing. This was true even for the Solicitor General, who appeared as amicus curiae (“friend of the court”) after filing a brief which only addressed the merits of Prop 8, not the issue of Article III standing.

From there, the Justices spent time on standing before Chief Justice Roberts directed them to discuss the merits. From my perspective, reading the transcript (I was unable to get into the arguments) it seemed that there was a fair amount of time spent on each issue, and it seemed that Chief Justice Roberts was very deliberate in directing everyone to speak on certain issues at certain times. I would guess they spent more time on the merits and less on standing, but there didn’t seem to be a significant gap, at least to me.

Could we get an early decision if they rule on standing?

Yes. The Court could dismiss the petition as improvidently granted, and a “DIG”, as it is called, is only a one-line “opinion.” In some cases, petitions are dismissed as improvidently granted for lack of standing in as little as a week, and sometimes it’s longer. So it is possible we could see an early, short decision dismissing the petition. It’s also possible the Justices may feel like they need to write an actual opinion on the Article III issues in this case, as they’ve never definitively ruled that ballot proponents have (or lack) federal Article III standing.

Why was the issue of “putting our civil rights up to a popular vote” not addressed?

The point sort of was, and sort of wasn’t, addressed. No one asked directly whether it’s okay to put rights up for a vote, but this was an equal protection challenge and there was not much focus on due process “fundamental rights”, so from my read of the transcript, discussions on this point tended to focus on Justice Scalia’s questions about “when it became illegal” to ban same-sex marriage, in other words, if it is a right, when did that happen? (As Mr. Olson adeptly pointed out, this is not a typical inquiry in these cases, so it seemed a bit of a straw man argument.)

It was my impression that if the Court had focused more on whether marriage is a fundamental right and less on whether the Ninth Circuit’s rationale was valid or “odd” (as Justice Kennedy said) then some Justices would have discussed why it is that the right is voted on through state ballot initiatives. Obviously, in the briefs in this case, Olson and Boies have pointed out that gays and lesbians have faced ballot initiatives more than any other group in American history.

What is the schedule for today, Wednesday, March 27?

Arguments in United States v. Windsor, the DOMA case, began at 10AM Eastern time. Today’s arguments are one hour and fifty minutes, because the parties were asked to brief and argue whether the Bipartisan Legal Advisory Group (BLAG, defending DOMA for House Republicans) has Article III standing, and whether the Justice Department’s agreement with Edith Windsor that Section 3 of DOMA is unconstitutional means the Court should not have granted their petition because they lack jurisdiction over it. The Court appointed an outside attorney, Victoria C. Jackson, to argue that the Court lacks jurisdiction and BLAG lacks standing. And the Solicitor General and BLAG’s lawyer, Paul Clement, will argue the opposite. Edith Windsor’s lawyer, Roberta Kaplan, did not get time to argue on standing and jurisdiction, but was, of course, given time to argue on the merits.

Jacob will have more when he leaves the Court today.

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