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Day 1 in the Supreme Court

March 26, 2013

For 80 minutes this morning, some of the nation’s top legal thinkers debated the constitutionality of Proposition 8, California’s ban on same-sex marriage.

A Supreme Court argument is a majestic thing, and in that respect, this morning’s Supreme Court argument in Hollingsworth v. Perry was no different than any other.  Of course, our judicial system runs by what we call the “adversarial process,” so by definition you will pretty much agree with one side or the other. Still, you can admire the craft and discipline of capable debaters, even when you think their arguments are terrible.

Right up front, I have to say that I don’t see five votes in favor of a constitutional right of same-sex couples to marry. Justice Kennedy, the presumed swing justice in the case, was unconvinced. His questions suggested an unwillingness to rule on the merits at all – he evidently does not want to participate in creating a precedent that will very shortly become embarrassing, but neither is he ready to require Mississippi to allow same-sex marriages.

For the long run, it is important that Justice Kennedy’s skepticism was rooted in the newness of same-sex marriage. At one point he observed that “sociological information” about same-sex marriage is new – “We have five years of information to weigh against 2,000 years of history or more.” In other words, Justice Kennedy (unlike Justice Scalia) expressed concerns based on the state of our knowledge, which will change over time – leaving himself or his successors a way to vote differently in the future.

A point of potential importance was that Justice Alito, one of the three hard-core conservatives on the court, made the same point – although he correctly identified 2000, not 2008, as the year that legal same-sex marriages came into modern being. I am doubtful, though, that Justice Alito’s vote will hinge on something as mutable as the state of our knowledge. Justice Kennedy, by contrast, has amply proved in prior decisions that he is not fundamentally opposed to lesbian and gay rights.

An interesting twist is that Justice Kennedy, alone among the justices, asked whether a ban on same-sex marriage should be regarded as a “gender-based classification,” which would fit the case cleanly into the court’s existing precedents. It is well established that governments can rarely if ever exclude members of one sex from rights and obligations given to members of the other sex. That issue, Justice Kennedy said, is one “that I’ve been trying to wrestle with.”

Chief Justice Roberts seemed pretty firm in his skepticism of same-sex marriage rights. Justice Scalia founded his opposition to marriage equality on his standard “original intent” philosophy. And Justice Thomas, characteristically, said nothing at all – but can hardly be expected to vote for same-sex marriages.

Scalia’s original intent argument took a fairly intemperate form – he badgered Theodore Olson to give the date that banning same-sex marriage became unconstitutional. Olson first answered rhetorically: “When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?”

Scalia answer was willfully obtuse: “It’s an easy question, I think, for that one. At the time that the Equal Protection Clause was adopted.” Of course, the notion that Congress and the states believed, in the 1860s, that they were protecting interracial marriage and banning segregated public schools is ludicrous – just as ridiculous as the notion that they believed they were creating protections for same-sex marriage.

But the obtuseness of Justice Scalia’s answer only proves the obtuseness of his selective insistence on adherence to original intent. Constitutional drafting sets down general principles and leaves the application of those principles largely to be determined later. There is, for example, no way that James Madison imagined that the First Amendment would apply to someone who talks into a machine that converts sounds into electrical impulses that are carried through wires across continents to another person listening into another machine that converts the impulses back into sound. But sure enough the principles of free speech apply to telephone conversations.

The general principle laid down by the Equal Protection Clause is that people who are similarly situated should be treated similarly. The thing is that our understanding of who is “similarly situated” evolves over time. It was once thought that the races were fundamentally different, and that men and women were not equal participants in civil society. It was once thought that lesbians and gay men were morally defective, psychologically diseased, developmentally stunted, corrupted or disabled – in any event fundamentally different than heterosexuals. Over time we came to better understand race and sex. In a sense, then, the answer to Justice Scalia’s question is that race and sex discrimination became unconstitutional when we came to those realizations – the realization that people of different races or different sexes are in fact similarly situated.

We are now coming, remarkably rapidly, to the same realization regarding people of different sexual orientations. At that point, discrimination by government based on sexual orientation – in marriage or otherwise – is or will be unconstitutional. For now, the argument for Proposition 8 – as stated today by attorney Charles Cooper – is that “same-sex couples and opposite-sex couples are simply not similarly situated.” He insisted without irony that the Supreme Court in Loving v. Virginia only stated what was “patently obvious” – that race is irrelevant to marriage. Of course, as with same-sex marriage today, it was not “patently obvious” to our southern states at the time – or else the Supreme Court’s ruling would not have been needed.

There were other points of interest in today’s arguments. Justice Sotomayor pressed Cooper whether there is any context besides marriage in which it would be constitutionally permissible for a state to deny benefits to, or impose burdens on, homosexuals alone. Somewhat to my surprise, Cooper responded fairly flatly that marriage is unique – “I do not have anything to offer you in that regard,” he said.

Cooper’s argument that same-sex and opposite-sex couples are not similarly situated centered on the ability of opposite-sex couples to procreate. Yet he readily conceded that a fertility test for marriage “would not be constitutional.”

On the other side of the case, Theodore Olson gave a terrific answer to the slippery slope argument – the argument that allowing same-sex marriage will lead to approval of polygamy, incest, and other horribles. Olson said that banning same-sex couples from marriage penalizes them based on their status – their sexual orientation, which is inherent. Banning polygamy penalizes conduct, not status.

In advance of the argument, there was lots of speculation about middle roads the court might take – the so-called one-state and eight-state options. The one-state option would be upholding same-sex marriage rights only in California, as did the court of appeals, on the theory that a state can’t constitutionally take away the label of “marriage,” leaving same-sex couples all of the rights and obligations of marriage. The eight-state solution would be upholding same-sex marriage rights in states that afford same-sex couples all of the rights of marriage, but not the label of “marriage.” (The eight-state option last week became a nine-state option when Colorado enacted legislation granting marriage-like rights to same-sex couples.)

I was critical of the court of appeals decision in the Proposition 8 case, and I have been skeptical of the eight-state solution. No justice expressed any interest in either option. Justice Kennedy, at whom the one-state solution was widely believed to be directed, was explicitly critical of that option. So it looks like the case is all or nothing – with one caveat.

The caveat is the issue of “standing.” Standing is a legal doctrine founded on the constitutional limits on federal courts’ jurisdiction, that says a person cannot bring a case to federal court, or appeal a case to a federal appeals court, unless the person has suffered or is about to suffer some injury or harm. The idea is that federal courts will not resolve disputes that are  theoretical or contingent, but only disputes that involve real harm to real people.

When the Supreme Court agreed to hear the Hollingsworth v. Perry case, it instructed the parties to address the question whether the sponsors of Proposition 8 had “standing” to appeal the case to the Supreme Court. The governor and attorney general of California declined to defend the constitutionality of Proposition 8, so the lower courts had allowed the sponsors of the original voter initiative to defend it instead.

It seems pretty clear that the sponsors suffered no legal harm or injury from the invalidation of Prop 8 that would be sufficiently direct or personal to give them federal court “standing.” But a state has “standing” to defend the constitutionality of its own statutes, and the argument here is that, since the voters passed Prop 8, and since the California Supreme Court ruled that the Prop 8 sponsors could speak for the state in this case, then they have federal court “standing” in place of the state.

I have always associated an expansive interpretation of “standing” doctrine with liberal justices, and a restrictive interpretation with conservative justices. But in today’s argument, it was the four liberals, plus Justice Roberts, who expressed concerns about the Prop 8 sponsors’ standing. Justices Scalia, Kennedy and Alito asked questions that suggested satisfaction with the sponsors’ standing. (In fairness, two of the liberal justices – Sotomayor and Breyer – asked questions on both sides of the question.)

If the Prop 8 sponsors did not have standing to appeal to the Supreme Court, then they presumably also lacked standing to appeal to the court of appeals. That would mean that the case would be left at the district court, which decided that Prop 8 was unconstitutional. That decision would have no binding effect outside California, and arguably it might have no binding effect outside of the Northern District of California.

Justice Kennedy went so far as to suggest that the court should change its mind about deciding to hear the case in the first place – in court-speak, this would be dismissing the writ of certiorari as improvidently granted. In what I think was a revealing moment, Justice Scalia jumped right in to express strong disagreement with that suggestion: “It’s too late for that now, isn’t it?  I mean, we granted cert.” I take this to mean that Justice Scalia recognizes that his chances of getting five votes to sustain Proposition 8 will not be improving with time.

It’s hard to predict Supreme Court outcomes based on oral arguments, especially when the court is closely divided, and even more so when the court has more than two options. It’s likely that the four liberal justices would like to uphold same-sex marriage, and it’s likely that at least three of the justices are adamantly against it. But five of the justices expressed concerns about the court’s jurisdiction to hear the case – the Prop 8 sponsors’ standing – which offers a third option.

Ironically, I think dismissal based on standing, which is often viewed as ducking the issue, would be a big victory for same-sex marriage. It would probably mean that California would join the states permitting same-sex marriage, and it would definitely mean that there is no Supreme Court precedent against same-sex marriage rights.

In combination with tomorrow’s case, which I expect to go in favor of federal recognition of same-sex marriages that are legal in the states, it would be a tremendous leap ahead for same-sex marriage rights. More on that tomorrow, after argument are heard in United States v. Windsor, where the federal Defense of Marriage Act will be debated.

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