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Tenth Circuit Focuses on Standing

First, if you haven’t read Scottie’s report, close this tab, and go read his post now. I think you can gain a lot through a listen or two of the audio (MP3 file available here), but there is just nothing that can make up for the ability to see the argument in person and view the body language of the judges. It is one of the reasons that I am so supportive of the work that Scottie has been doing. If you are able, consider clicking on that donate button up top.

Anyway, I have now had an opportunity to listen to the tape, and I guess the biggest thing I can say is: standing, Standing, STANDING. I figured it would come up, but not that the plaintiff’s attorney would spend almost all of his time on standing. Briefly, wikipedia has the following definition for standing: “ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case.” That’s perhaps more broad than we need here, but basically it means that you want parties that can best represent the issues to the court.

If you look back to the previous 10th Circuit panel which dismissed the case for standing, the court basically told the plaintiffs to sue the county clerk as the best representative of the judicial branch that authorizes marriages in Oklahoma. And that’s what the plaintiff said as he was trying to steer conversation back to the more substantive issues. And maybe they haven’t found the exact perfect defendants, but I believe that at least two of the judges were leaning towards finding standing.

Now, the related questions that seemed to be most troubling for the three judges was standing for the question of whether the court had standing when legally married same-sex couples from other states tried to be recognized in Oklahoma. The judges seem to clearly understand that the clerk took action when issuing a new license, but when you move from, say California, to Oklahoma, do married couples go to the clerk? And who would be the right person to sue for that? Is there a right person at all?

It was at this point that Judge Lucero brought up the concept of “Capable of repetition, yet evading review.” This is a concept under the mootness doctrine that allows courts to hear cases even when the case isn’t really at issue anymore. Your textbook example of that is a case involving a pregnancy. The pregnancy ends, but the issue will remain for other women. The same could also be said to be the case here.

The other side of out of staters coming in was the question of “severability.” That is, if the panel strikes down the licensing provision, would the whole scheme fail? Or could the ban on out of state couples endure? That result would be something of a head scratcher, and really make no practical sense. But, I suppose it could happen if you don’t strike down the whole provision, and then the court can’t reach a decision on out of state marriages.

In the end, one suspects that much of this conversation will be academic. If the court decides to strike down the whole same sex ban, then the question of out of state marriages probably becomes a logical victim of circumstance and practicalities. As for the substantive issue, I don’t think we can read a whole lot more into today’s hearing than we got from the judges questions in the Utah case.

If I were a betting man and pressed on the issue, I’d be inclined to say 2-1 in favor of equality for both cases. But I think Holmes and Kelly could yet go either way. Holmes may just find that a simple rational basis test compels upholding the ban. Or perhaps Kelly could even switch over to striking down the measure on a heightened scrutiny basis. Reading the tea leaves on judges questions is a tough, tough business, so perhaps we just have to hope that the decision comes down soon.

206 Comments April 17, 2014

A Lengthy Review of the Utah Oral Argument

Scottie wrote a great point by point review of the argument. I won’t get to every point, but I will try to dig in a little bit. Let’s get to it…

By this time, if you are reading this particular website, you know the basic facts. But,  it is worth restating here.

The first time Utah specifically forbid same sex unions was by Legislative action in 1977. In 2004, during the height of the Bush Administration’s effort to politicize marriage equality and the proposed federal Constitutional Amendment, the Legislature tacked on two more bills. The first was to add Section 30-1-4.1 to the Utah lawbooks. It is one of your more broad gay marriage bans. It doesn’t ban personal contracts like some of the more extreme measures, but it did specifically bar civil unions or any law that would grant any marriage like benefits.

The other measure they passed was a resolution to put what became Amendment 3 on the Nov. 2, 2004 ballot. You would think the law would be enough, but Karl Rove and team were pushing marriage amendments to be placed on the ballot to boost turnout, and so the Utah Legislature complied. It passed with 65.9% of the vote, and went into force as Article I, Sec 29 in January 2005. (A side note: read the first few paragraphs of that Rove link if you want to remind yourself just how far we have come in ten years.)

So that brings us to this case. The plaintiffs are a gay male couple and two lesbian couples who have lived in Utah for a long time. (See their photo on Restore Our Humanity’s Facebook page.) Utah is their home, and they have built their families there. They have no interest in moving, and why should they?

That brings us to the main event: the application of the 14th Amendment Equal Protection clause to Utah’s marriage equality ban. Looking back to Windsor, we need to distinguish our Equal Protection clauses. In that case, the Equal Protection clause was that of the 5th Amendment, which applies to the federal government.  As Judge Shelby pointed out in his district court decision, that 5th Amendment protection aligned with the broad concept of federalism and the right of states to define marriage for themselves. That is, New York state had authorized Edith Windsor’s marriage, and the federal government should not override that.

In Windsor, these interests were allied against the ability of the federal government to disregard a state law that protected individual rights. Here, these interests directly oppose each other. The Windsor court did not resolve this conflict in the context of state-law prohibitions of same-sex marriage. (District court decision at 5-6)

With respect to the federalism question, the 14th Amendment must in a sense overcome that question. In other words, the equal protection violation must be severe enough to demand that the federal law take supremacy over the offending state law. Like he did in Lawrence v Texas, Justice Scalia argued in his Windsor dissent that the Court’s holding would inevitably lead to courts deciding that marriage equality was required of the states as well. Ultimately, given the many decisions at the district court level going our way, he was indeed correct about the district courts. Federalism just can’t trump an offense to the 14th Amendment as blatant as something that is motivated by “bare … desire to harm” as described in Windsor. In the end, federalism can’t really trip up the case as it is outweighed by the 14th Amendment, and puts the whole ballgame on the equal protection case.

In today’s argument, the attorney for the state, Gene Schaerr, argued that Windsor was primarily a case about federalism. Judge Lucero, for his part, was having none of that. He repeatedly sparred with Shaerr on this question, remarking that Windsor, at the point in the decision was actually laid out, was specifically tied to Equal Protection:

In turning to Windsor, … Justice Scalia in his dissent really highlights this, that when the Court was speaking in Windsor about marriage, that it very clearly indicated and gave a direction that it was going to be talking about federalism. But, in fact, when it came to dispositive language of Windsor, … it directly disavowed a decision predicated on federalism, and instead turned to equal protection and due process as the deciding elements of that case. (Audio at 10:30)

Lucero goes on to state that he was not convinced by the power of federalism in that case, and Shaerr’s argument that it gave states complete dominion over marriage. Shaerr states that New York had decided on a more relationship based model of marriage, and that Utah had the power to define marriage for its own purposes.

Standard of Equal Protection review

This has been the subject of much academic speculation both before and after Windsor. Prior to Romer v. Evans, it was assumed that were really only three, somewhat distinct, levels of scrutiny. Strict scrutiny primarily applied to race and religion, intermediate scrutiny applied to gender issues, and rational basis applied to all other categories of people. Romer tweaked that by adding a fuzzy rational-basis plus test. There has to be a rational basis for the law that is connected to a legitimate government interest.

In the Supreme Court cases that have touched on LGBT issues since then, this question has been honed. At this point, Windsor is the closest thing to a controlling test. While it is based on the 5th Amendment’s equal protection clause, it can be reasonably applied here. Ninth Circuit Judge Stephen Reinhardt explained the Windsor standard pretty succinctly in a case about jury selection:

Windsor scrutiny “requires something more than traditional rational basis review.”  Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status. In short, Windsor requires heightened scrutiny. (SmithKline Beecham v Abbott Laboratories, at p.23)

Of course, this was a subject of today’s oral argument. The attorney for the state, Gene Schaerr led with his argument why sexual orientation should not get this heightened scrutiny. Judge Lucero then brought up Loving, and the question why the gender discrimination shouldn’t get intermediate scrutiny as race got strict scrutiny in Loving.

Shaerr sparred with Lucero on this question, with Lucero following up with the question of whether marriage is a fundamental right. Shaerr acknowledged that marriage had been treated as a fundamental right (meaning that it could be subject to a substantive due process claim and possible higher scrutiny).

The first question Peggy Tomsic got was on precisely this issue, and she stated that this court should get a heightened level of scrutiny under Windsor or as a suspect gender-based class. On the fundamental right to marry and the substantive due process claims, courts have traditionally applied strict scrutiny. The question, of course, then becomes a matter of does this fundamental nature apply to whom you get to marry as well as just the fact that you can marry.

Tomsic argues that Windsor and Romer state that where a law categorizes a group for discrimination, that rare law causes the court to take a special look at those laws to be sure the effects of those laws are not to harm the class. That standard calls for the court to review the design, purpose, and practical effect of the law, and if the class is injured, the state then has a burden to show that there is a really legitimate interest.

Generally, while Judge Kelly seemed to be fully on board with the State throughout the questioning and especially on this issue, Judges Lucero and Judge Holmes (probably) seemed inclined towards applying this heightened level of scrutiny.

The State’s Interest in Denying Marriage Equality

The state, for its part, is hoping that just the lowest rational basis standard applies and runs with that premises. The district court ruled that Amendment 3 couldn’t even survive that, but they totally, completely, entirely disagree. Judge Shelby just got the application wrong, they argue. They only need to show a plausible policy reason for the classification and that the definition furthers their interest. Of course, all of this is refuted in the plaintiff’s brief and was refuted at today’s hearing. The most basic statement of that boils down to this:

Even assuming that each of the governmental interests proffered by the State is legitimate, there simply is no rational connection between any of those asserted objectives and prohibiting same-sex couples from sharing in the protections and obligations of civil marriage. (Pl. Answering Brief p.64)

But the state has some very serious research from some very serious scientists to back up their point. Their basic point is that the state’s public interest in marriage is to encourage the creation of stable husband-wife families for children. Never mind that they had no actually serious research that showed that same gender relationships were any less stable for child development. In fact, the state’s briefs relied heavily on the work of Mark Regnerus, who has now been thoroughly discredited and forced the State to send a letter discounting his work.

Shaerr argued that while the children of same-sex couples legally married in other states would be stigmatized under Amendment 3, that Utah had the authority to do so. After all, the children of polygamists were stigmatized by the ban on polygamy. This was very quickly dismissed, and Shaerr was told that the case today was about gay marriage not polygamy.

Shaerr then turns to the state’s interests in denying marriage equality, chief among them was what the state is calling “gender diverse parenting.” In other words, the state feels that children should have both “an involved mother and an involved father.” He states that Utah feels gender diverse parenting is at least as important as racial diversity in education, an interest that the courts have agreed is legitimate.

But how does banning marriage equality advance that state interest you ask? Well, the classification is rational if the benefitted community is differently situated with respect to the right in question. Lucero asks the next logical question: Why does blocking gay marriages make it more likely that straight couples will get married?

We believe that redefining marriage in genderless terms, and moving from the man-woman definition. And the man-woman definition inherently, although subtly, conveys a message … that a mom and dad are important. And when you redefine marriage in genderless terms, you dilute that message and you dilute that norm in the law. As Profs. Hawkins and Carroll say, one of the messages to heterosexual men … is that we don’t really need you for your children because we have this alternate relationship where two women can get married and be impregnated artificially. And they can create a family without a man, and that teaches, in Justice Kennedy’s words, that gender is not that important, and that dads aren’t that important.

Just after this, Shaerr goes on to cite Maggie Gallagher, of NOM fame, that boys will not learn proper masculinity without a father. So, deep science there, don’t you know. But the next question that you would really want to ask is how is this marriage ban at all narrowly tailored to address this issue, even if you accept Maggie G.’s hypothesis.

Tomsic, in her portion of the time, argues that even if you are applying a rational basis test, the interests must really be legitimate. The rational basis test is not so weak as to allow “flimsy” rationales. Judge Kelly emphasized the important nature of federalism to Windsor, but Tomsic argues that there is no study that shows any legitimate evidence that children are harmed in same-sex couples.

Then we get to the Regnerus study, and Judge Holmes basically asked if the State had any case whatsoever at this point. The letter that State sent tried to walk back from their reliance on the study, and that left Shaerr with the argument that the State is allowed to legislate for the risk of negative effects of marriage equality.


This is a concept that has really come to the fore more recently legally. And there was quite a back and forth:

Kelly: That’s an animus argument, isn’t it. Judge Shelby didn’t find animus, and I’m struggling to see how that is applicable here. … Until 2010, nobody even thought of recognizing as a legal matter same sex marriage. So what Utah has done is validated what has been historical practice forever. How is that the same as Romer where they attempted to say that same sex couples or any on sexual orientation grounds is barred from legal relief. Those are two different things, aren’t they.

Tomsic: They are not, your honor. What the court was looking at in Romer, was what does the target to the class do? THat is, how are you differentiating between these classes of individuals, and are you differentiating to treat them unequally? ANd if that is the situation, that is a very rare type of law. And you can take about semantics, but there is no question looking at the text of Amendment 3, and the other marriage discrimination laws. The only thing those laws did was target same-sex couples, and make them unequal. None of those laws established the right to marry, gave benefits or incentives. Their only purpose and effect was to exclude same-sex couples from marriage or marriage recognition.

The conversation continues on this thread discussing the concept of animus in a back and forth until Judge Lucero intervened, and took the discussion off to the general principle of the statement that public policy cannot trump a constitutional right.


In the Oklahoma case, Article III jurisdiction is a bigger issue. The case was sent down once because of jurisdiction and for having sued only the Governor and Attorney General. In this case, the plaintiffs sued both the governor and AG, as well as a county clerk. However, Tomsic argued that the executive branch, through those two executive officials, wields more power in Utah and thus grants standing under Article III of the constitution.

While a standing decision seems unlikely, it is a remote possibility that the court could dismiss the case for lack of standing. That would likely leave Utah with marriage equality, but a lot more questions for the other states in the 10th Circuit. However, that seems more likely in Bishop, and we will probably to get a decision on the merits here.

What’s next?

First, I apologize for the rambling nature of this post. I know it is a bit long, but there are a lot of issues to be discussed and I wanted to get this up as soon as possible. If you find mistakes, by all means, let me know in the comments.

I think I would be inclined to agree with the folks on twitter and all over the web that think this will be a tight decision. It seems that Judge Lucero is on our side, and Judge Kelly is with the state. However, given his comments in argument, Judge Holmes could conceivably go either way. If he doesn’t think heightened scrutiny applies, is Utah’s flimsy “risk” to the state and sketchy nexus to that risk enough to sustain the Amendment 3 through the rational basis test? Possibly, and Judge Holmes seemed to indicate that. However, we will likely have plenty of time to debate that question over the next few months.

29 Comments April 10, 2014

A Quick Roundup of #10thCircuit Hearing with Audio

As I process the the audio that was just posted on the court’s website today (short link here:, there are a few quick resources that you may grab your interest. Please feel free to add any favorite helpful links for this case in the comments.

You will also want to check out RestoreOurHumanity for the livestream of the immediate response after the hearing completed. The audio feed gave me a few problems, but you will find some other interesting content in addition to the stored livestream. Hopefully that video will be corrected soon.

The best place for instantaneous reaction from the oral argument was unsurprisingly twitter. I’ve been following the #10thCircuit hashtag, and it is certainly worth a few refresh cycles today. Reporter Ben Winslow, of Salt Lake’s Fox 13 tweeted that he thought the judges were leaning 2-1 in favor of marriage equality.

Winslow also has some comments in his feed from the plaintiffs, with Derek Kitchen stating that he is “humbled and proud” at the performance of his attorneys and the serious consideration that the three judges provided. For his part, Utah Attorney General Sean Reyes says that he apologized to the plaintiffs for their pain, but that it was his duty to defend the law.

After originally planning to attend the hearings, I was unable to make the trip. But I’m excited to write a little bit about the oral argument from afar. I’ll be back shortly with some more thorough analysis.

66 Comments April 10, 2014

Target Sues Marriage Equality Canvassing Organization

by Brian Leubitz

Last year, Target got into some hot water for donating $150,000 to an organization in support of anti-gay Minnesota candidate for governor Tom Emmer.  Apparently in their continuing effort to remind the LGBT communities to stay away from big box stores, they have followed up this week by singling out an organization, Canvass For A Change (CFAC) that is canvassing San Diego stores to talk about marriage equality.

In a court document, a Target official at the Poway store complained that CFAC volunteers were talking to customers about gay marriage, among other issues, and contended that they had received complaints from some customers who were upset by the topic.

Court documents also show that Target Corp. is worried that the company may be viewed as being for gay marriage if activist groups like CFAC are allowed to speak to their customers. (San Diego Gay and Lesbian News)

Now, the first defense that you will hear from every mainstream outlet is that Target just doesn’t like anybody outside their stores and that, heck, they even booted the Salvation Army.  (By the way, the Salvation Army is pretty anti-LGBT themselves.) Now, what you won’t hear is that they didn’t really boot the Salvation Army out, so much as paid them to go away. They give the Salvation Army a fairly sizable contribution every year.

There are two real issues going on here.  First, it seems that Target is, um, targeting this pro-marriage equality organization in a way that they aren’t for other organizations.  True, they do try to get rid of as many canvassers as they can outside of their stores.  But CFAC director Tres Watson says that the policy is not enforced uniformly at all, with Girl Scouts and veterans organizations tolerated, while CFAC is sued for an immediate injunction.

The other issues is the important nature of the first amendment freedom of speech issues.  Clearly if this were a Main Stree mom and pop store trying to sue an organization from setting up in the middle of the adjacent town square, they would be laughed out of court on first amendment grounds.  After all, we all have the right to speak our peace in that proverbial zone of free speech.   Yet unfortunately, there are few actual town squares left these days.  We just don’t live in an environment anymore where people cluster around the bandstand on Friday evenings.

Instead, we cluster around stores and strip malls, such as Target.  As the attorneys for CFAC have argued,  the strip mall is the new town square.  This is where people gather, and this is where you can speak if you want to get noticed.  This is how we confront issues facing our communities, through talking to each other.  And if we cut off this communication, we risk merely retreating to our own corners and further dividing our nation.

It turns out that the framers had it right on the First Amendment.  Now, of course you have to confront the issue of what if NOM or a similar organization were out there campaigning against equality? What would we say then? Well, for better or worse, organizations should be able to respectfully communicate a message.  Now, if they were to grow offensive or hostile, I think you have opened a different can of worms.

Now, the question for us a nation is how critical we think these First Amendment rights really are. Are they important enough to deal with on the way to stock up on paper towels and sporting goods? Ultimately, that is the question here.  I’m curious to hear what the P8TT community thinks on this issue from a practical standpoint.

130 Comments March 26, 2011

GOP still hasn’t realized that Bryan Fisher’s a liability: Newt Gingrich edition

27 Comments March 26, 2011

Flash 9th Circuit Hearing Analysis: Standing, Romer, and the Word

Thanks to P8TT legal analyst and Calitics publisher Brian Leubitz for chiming in his legal analysis as the trial proceeded during today’s liveblog thread, and for sharing with us his longer take here.

By Brian Leubitz

As I do this sort of flash analysis, I want to start with a big, broad, general point here. Namely, while you can see possible avenues and ideas that may filter into a decision, focusing on “winners” is a sucker’s bet. Perhaps, if you take all the questioning as a whole, you end up with some tougher grilling of the opponents, but judges like to play devil’s advocate. Sometimes you can get a read, and sometimes you can’t.  Also, I haven’t really had the time to fully analyze each aspect of these arguments, so forgive me if I misread, or am just plain wrong, in places.

So let’s take a look at the meat of the issues, and see what we learned today.

Imperial County

The attorney for Imperial County, and Isabel Vargas, the deputy clerk of the county, took a real beating in the courtroom. Robert Tyler, of the Advocates for Faith and Freedom, a right wing anti-equality non-profit, came to the podium in front of a skeptical panel.

First, the court had an issue with the fact that the actual clerk of Imperial County was not a party to the attempt to intervene. Rather, Mr. Tyler represented Ms. Vargas, who only really has authority to act as an agent of her elected boss, Dolores Provencio. Erwin Chemerinksy, the Dean of UC-Irvine’s new law school, had this to say about the oral arguments:

If Imperial County can intervene and defend Prop. 8, then there would be no need for supporters of Prop. 8 to have standing to do so. But both Judge Hawkins and Judge Smith seem very skeptical of the authority of the deputy clerk to seek to intervene on behalf of Imperial County. Both stressed that the clerk is not seeking to intervene and a deputy clerk lacks the authority to do this. Judge Smith also has raised the issue of whether the clerk is a state officer or a local officer. If the clerk is a state officer, then the clerk would not have the authority to represent the state — only the governor and the attorney general can do so. The clear sense so far is that all three judges are very skeptical of allowing Imperial County to intervene. (LA Times)

Of course, the question of Imperial County really only becomes important if the Court decides that the proponents do not have standing. But the Imperial County claim looks like something of a long shot at this point, or at least not something you would want to be pinning your hopes on.

Standing of the Proponents

This is where some unexpected wrinkles came up in the oral arguments. Namely the possibility of the “certification” of a question to the Supreme Court of California. But let’s back up a step.

In the questioning of David Boies, Judge Smith (the lone Republican appointee on the panel), asked him whether the failure to defend Prop 8 was a “nullification” of the efforts of the proponents and the choice of the voters in a way that was akin to a “veto” by the elected state leaders. Of course, a veto of an initiative is not allowed under the Constitution. So, conflict? (Here’s where I’m hearing an ominous duh-duh-duh in my head.)

Well, not really. Boies points out that the California Supreme Court was in fact asked whether Brown and/or Schwarzenegger were legally obligated to defend Prop 8. And, in fact they were asked by the “Pacific Justice Institute” exactly that question. PJI was first denied by the the 3rd District, and later by the California Supreme Court.

There is a process for appellate courts to ask state courts a question about state law, called certification. Basically, they “certify” a question, and the state supreme court can answer it. It would delay the process substantially, and given the quick dismissal of the PJI attempt to get Brown to appeal, doesn’t really seem either necessary or worthwhile. Essentially, the state supreme court has spoken on this issue by failing to force the appeal.

However, if the panel really felt strongly on this subject, they could go to the State Supreme Court. We would probably hear about that fairly soon. But, really, don’t expect that.

Returning to the main issue, the ball game was essentially played on the field of Arizonans for Official English, with various cases modifying it. The court was essentially trying to figure out if there a) had ever been a case where a proponent was deemed to have standing and b) if this should be that first case.

Charles Cooper, the attorney for, eventually relented that there was not such a case. However, he then went on to say that the Strauss decision, where the state Supreme Court upheld Prop 8, was an example of just that in the state court. There, Brown and Schwarzenegger once again refused to defend, but the proponents had standing as defined by the California Supreme Court.

Now, Article III standing isn’t the same thing as California standing, there is different jurisprudence on that. However, the admission that there was no case makes the proponents request a question of novel law. Now, that’s not to say that they can’t win on this question, but it does underscore the big question mark on this issue.

The Substance

After all the process of the first hour (plus 15 minutes), it was on to the meat and potatoes of the due process and equal protection claims. One interesting initial point was that both sides seemingly dropped the question of intermediate or strict scrutiny. Ted Olson briefly mentioned that he think that it could apply, but the substance of his remarks all stuck to the question of whether there was a “rational basis” for Prop 8.

I think there were a couple of specific points that attracted most of the attention, the Romer case, and this question of the “word”.

The “Word”

Judge Smith focused a couple times on whether the State of California was in a worse position for having passed Prop 8 because it has given all of the same rights and privileges under the auspices of the domestic partnership statute. In other words, if we are only fighting over a word, and no substantive differences at the state level, aren’t we essentially creating a subclass? And roughly transcribed, here’s what Cooper said:

Cooper: The word is the institution. If you redefine the word, you change the institution.

I actually think this was a big moment of the oral argument. It said that yes, the anti-equality forces were there only to “put down” gays and lesbians, or as San Francisco Deputy City Attorney Therese Stewart said (again, this is my rough notes here):

If the word is the institution, then the argument is just that gays and lesbians would “stain” the institution. The fact that Prop 8 is symbolic, it makes the insult obvious. This is classification for its own sake, and it violates the equal protection clause. Taking these components together, it infers animus.

If we only passed Prop 8 to show that same-sex couples aren’t as good, or as worthy as other couples, then isn’t the equal protection argument plain to see? It reveals the naked schoolyard taunting aspect of Prop 8. Nah-nanny-boo boo, you aren’t as good as me. And frankly, nanny-boo-boo isn’t a valid use of state authority.


Romer v Evans struck down Colorado’s Amendment 2, which barred local governments from recognizing gays and lesbians as a protected class, as the City of Denver had done earlier in the decade. In the decision, Justice Kennedy said that the law denied LGBT Coloradans the protection of the law in an impermissible way. It was so broad as to “confound” judicial review and that Amendment 2 was raised of animus. Or as Kennedy put it:

[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected…

Cooper argued that the legislation at issue in Romer was so broad that it couldn’t be constitutional, whereas this was just one issue, the word “marriage.” Judge Hawkins pressed Cooper, saying that the removal of rights, especially this right, put it back in the Romer territory. This issue of the removal of rights looks likely to come up in the decision, if the court does reach past the question of standing.  The question just seems too large, and too conflicting with prior law, to not be a major part of the decision.  And generally, that’s a good thing for equality.

Who wins?

So, can we predict a winner from the argument today? Well, I go back to my initial statement, it is hard to tell from an oral argument alone. If you really pushed me, I would say that the plaintiffs would be the favorite at this point. The duel questions of standing and whether the court could really find a rational basis hang in the air. And I’m not sure that Cooper satisfactorily answered either.

129 Comments December 6, 2010

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