Proposition 8 at the Supreme Court: Analysis of Today’s Argument, Part 2


In Part II of Towleroad's summary and analysis of the Prop 8 oral argument, we pick up with Ted Olson's argument against Prop 8. Read Part One HERE.

And listen to audio and read the full transcript HERE.

OlsonHere's what we have discussed so far:

  • The justices are definitely interested in the standing question. The Chief Justice, though playing a gate-keeper role to make sure standing gets addressed, expressed skepticism. The key will be to see if he is playing the devil's advocate or expresses skepticism with Mr. Olson, too. But, in addition to the Chief Justice, Justice Ginsburg is highly skeptical. If we see more evidence of this below, look for lack of standing to be the odds-on favorite of many pundits. But, remember, there were lots of other questions on the merits from all the justices. That does not mean that they are going to pass by standing. Nor does it preclude a 9-0 opinion saying the Proponents had no standing.

  • Mr. Cooper was forced to admit that the only injury caused by allowing gays to marry would be redefining marriage, which is clearly not an injury whatsoever. He also admitted that gays simply do not advance the government's interest in encouraging natural procreation within wedlock (even though he's wrong about that), which proves that a ban on gays marrying cannot actually advance that interest, either. If it weren't for some help from Justice Scalia, this case would be over on this point alone.

  • Justice Kennedy showed that he, like many, are struggling with this issue. The addition of this relatively emotional admission (emotional, at least, by Supreme Court argument standards) is telling of his honesty and the reality that many people are going through right now. This may suggest that Justice Kennedy is going through his process, perhaps with a little help from everyone else along the way.

We pick up with Ted Olson's argument and see what lessons we can draw,

Ted Olson, the lead attorney challenging Prop 8,
fared better.

J_robertsMr. Olson got a bit further into his opening
remarks before being interrupted by Chief Justice Roberts about standing. So,
here, we already see that a given question or a tendency to interrupt does not
foreshadow anything. However, I will say that both times the Chief Justice
asked a standing question, it was tilted toward showing skepticism: to Mr.
Cooper, he asked how Proponents are any different than random citizens, who
never have standing; to Mr. Olson, he asked how Proponents could ever have
standing when the State of California declined to appeal at all. Neither
attorney said anything new or that wasn't in the briefs. I would color the
Chief Justice skeptical on standing. But, don't color the entire Court in
the same shade. Justice Kennedy jumped in first with a few questions critical of Mr. Olson's no-standing view and repeated the argument from the
California Supreme Court
: without the right to defend the initiative, the right
to "propose and enact" an intiative or referendum is meaningless. Justice Alito was there with him with a follow up. Justice Sotomayor was also worried about what happens when state officials simply don't like a law and stop defending it; "how do you get the law defended in that situation?" Mr. Olson had no answer, but returned to his talking points on direct injury.

Justice Sotomayor's questioning is a perfect example of why we cannot read too much into the tea leaves of oral argument. She asked pointed, sharp standing questions to each attorney: demanding a clear statement of injury from Mr. Cooper (which he could not provide) and a clear answer on state nullification from Mr. Olson (which he couldn't provide, either).

When he moved to the merits, Mr. Olson's next move was a
breath of fresh air. He turned to the broadest argument we can make for a
national right to marry: that any ban on gays marrying violates due process.
While this shouldn't surprise us — this argument was not only front-and-center
in his brief, but also invited by the Court when it crafted its broad Questions
Presented — it reminded me of the great potential of this case and Mr. Olson's
confidence in his position.

As expected, the argument drew forceful
responses: a nuanced one from the Chief Justice and an angry, bitter one from
Justice Scalia. The Chief Justice made the point that bans on gays marrying
need not only be seen as antigay discrimination. It is undisputed that marriage
as an institution developed without gays; keeping it that way is not
necessarily discrimination. Aside from ignoring pre-Christian "unions" in Greece and Rome and focusing only on the development of marriage in a Judeo-Christian tradition, what the Chief Justice misses with that argument is the discriminatory and silencing role of the closet. Countless institutions developed without gay people because gays were shoved underground and forced to hide in order to survive. Plus, that a practice has always existed does not mean it isn't discriminatory.

A_scaliaJustice Scalia glommed on to that interesting — but
ultimately unsatisfying argument — by demanding, in a tone typical of the
archconservative justice, that Mr. Olson tell him "exactly when" it
became unconstitutional to ban gays from marrying. After all, there was no gay
marriage right in 1791 (the year we ratified the Bill of Rights).

Mr. Olson showed his confidence, experience, and
his standing at the Court by doing something I tell my students and young
attorneys never to do: answer a question with a question. His argument was
amazing: If that's your concern, when did it become unconstitutional to ban
interracial marriage? Justice Scalia got testy, demanding an answer. Mr. Olson
said he couldn't point to a date, but that wasn't the point: No court requires
that kind of precision. Mr. Olson could have gone further and argued that this kind of discrimination is always anathematic to American principles of liberty and equality; that it took a while for us to realize it is our fault, not a gay person's burden to bear.

What was happening here was Justice Scalia hyping
his view that the Constitution is "dead, dead, dead," and was egging
Mr. Olson to say that the Constitution should change as times and social mores
change. Strategically, Mr. Olson declined to take the bait. Justice Scalia bloviated, "How am I supposed to decide a case then, if you can't give a date when the Constitution changes?"

It was almost as if Mr. Olson was not going to bother with such nonsense. He responded by noting that when the Court decided that separate-but-equal schools were unconstitutional in Brown v. Board of Education, for example, no one ever required something as ridiculous as a date the Constitution changed. And that's because the Constitution isn't changing. Just because society's conceptions of freedom and equality a century ago were not our conceptions of freedom and equality does not mean that the Constitution has to stand for the versions of freedom and equality that prevailed when we had slaves. But, there will be no persuading Justice Scalia on this point. In fact, he even admitted that he was demanding something unprecedented: "I know," he said, "I know." The Court has never required anything of the sort. "That's exactly the problem." It's clear that Justice Scalia wants to upend centuries of rights jurisprudence. There's very little rational argument can do about that now.

The Chief Justice and Justice Kennedy then asked questions about the "odd rationale" (Kennedy's words) the Ninth
Circuit gave for rejecting Prop 8 — namely, that by taking away a right
already given, Prop 8 violated the principle of Romer v. Evans. To the
Chief Justice, Mr. Olson reiterated his fundamental rights argument, but
conceded that there were several, narrower ways the Court could decide the
case. To Justice Kennedy, Mr. Olson declined to be overtly critical of a lower
court opinion that came out on his side, but you could tell that Mr. Olson was
positioning himself at the boundary and allowing the Court a lot of leeway to strike down Prop 8 without, as Justice Kennedy noted, going into uncharted waters and finding a cliff at the end of the line.

SotomayorIt was Justice Sotomayor who brought up the
slippery slope argument about polygamy: If marriage is a fundamental right, Mr.
Olson, can we ever have legitimate restrictions on it? Yes, he said. Prop 8 is
part marriage restriction, part status discrimination; it targets gays as a
class. A restriction on polygamy would target conduct, not a class of persons
traditionally discriminated against. 

The take away from this is that having chosen to make the broadest argument about any ban on the freedom to marry violating due process, Mr. Olson had to spend more than half of his time at oral argument swatting down skeptical questions from both wings of the Court about the very breadth of his proposal. But, don't dismay. Posing the broad argument was likely a strategic decision that allows a more moderate approach to seem like a reasonable compromise. 

Don Verrilli, President Obama's Solicitor
General, makes the President's "8 State Solution" Argument.

When a state like California grants gays the
right to do everything, including
Verrilliadopt children or have a family through a
surrogate, then Mr. Cooper's argument that the state's interest in heterosexual
couples' procreative ability has no "legs." Several justices noted
the irony of the '8 State Solution' — it says that the most pro-gay states are
violating the rights of gays, but it leaves out the states that don't allow gays
any rights. Mr. Verrilli answered that question by agreeing with my argument
that the 8 State Solution was inherently illogical as a matter of law: It's not
just the pro-gay states; the anti-gay states will also have trouble justifying
their bans on gays using the word "marriage." This case, however, is
about a unique state.

Mr. Verrilli was the one who had to deal with the
Chief Justice's and Justice Alito's suggestions that this was all moving too
fast. Gay marriage is new, Justice Alito said, preventing us from actually
seeing its effects. The Chief Justice's voice actually grew louder on the audio
when he challenged the demand for a nationwide right to marry without letting
the public debate continue to work it out.

To use a baseball analogy, it seems like Mr. Olson and Mr. Verrilli were playing different roles on a team. If it's the bottom of the ninth inning and you have a man on second and need one run to tie and two runs to win, Mr. Olson was trying to hit a "walk off" home run so the game would be over and everyone could go home. Mr. Verrilli was aiming to just get the runner home, setting up extra innings where some of his heavy-hitting teammates could end the game in a little while. Although Mr. Verrilli faced some questions about a broad holding, he was hitting back the justices' skepticism with viable alternative options.

Mr. Cooper gets another shot (a rebuttal), but
Justice Ginsburg has his number.

Charles_cooperIn an extra-long 10 minute rebuttal (extended
because the justices kept Mr. Olson up there a bit too long), Mr. Cooper tried
to capitalize on several justices' concerns about a nation-wide right to marry
by arguing that an anti-Prop 8 decision could never be narrowed to just
California. Justice Ginsburg snapped back in only the way she can, with a
lesson about how Loving v. Virginia ultimately came about after
several, more limited decisions that paved the way for a national right. Mr.
Cooper's only response was the procreative argument about which several
conservative justices had already expressed skepticism: that the government has
no interest in banning interracial marriage, but it does have an interest in banning
gays from marriage because gay people cannot advance the govermental interest
in encouraging responsible procreation. I think the 40,000 children of gay
parents in California would disagree.

Perhaps the most remarkable thing about this
hearing came at the end, where Mr. Cooper was the one who almost conceded that
the freedom to marry is coming, sooner or later. His plea, his only plea, was
for the Court to stay out of it. The Court need not even worry about Mssrs.
Katami and Zarrillo or Ms. Stier and Ms. Perry because the freedom to marry
"will be coming back to California." Ostensibly referring to public
opinion polls, Mr. Cooper has the nerve to ask the Court to continue injuring
even the plaintiffs (let alone the rest of California) because gay persons'
marriages are things everyone should vote on. The justices did not have time to
question this line of argument, but it strikes me as the height of Mr. Cooper's
and his movement's dismissive heartlessness: these people don't need their
rights guaranteed because eventually, my liberal kids are going to give them
their rights.


For those willing to make predictions from oral argument alone, look at the following things we learned:

  • Several members of the Court are concerned about standing, asking questions skeptical of proponents' standing to both sides.

  • Justice Kennedy may have given us his version of "I'm evolving every day on this issue" when he said that this case is raising issues that he "has been struggling with." He is obviously keenly aware of his role as the so-called "swing" justice and does not want to tip his hat, but his words tap into the journey our entire country is taking together.

  • Mr. Cooper admitted the emptiness of his case and the lack of any real connection between Prop 8 and a state interest.

  • Some of the justices asked skeptical questions about a broad ruling, but that does not mean Prop 8 will survive. If anything, it means that Mr. Olson's strategy worked.

Hollingsworth may, therefore, end Prop 8, either on standing or the merits. Either way, everything about today's argument suggests that Mr. Cooper's conclusion is wrong. No one should have the right to vote on the legitimacy of my love. And no one has the right to hand me my rights like beneficences from a king. That is why the American Foundation for Equal Rights (AFER) and its attorneys, Ted Olson and David Boies, took us to the Supreme Court. Today, our lawyers made us proud by revealing the basic infermity of Prop 8: it singles out gays, discriminates against them, and it does so for no reason. 


Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. You can follow him on Twitter at @ariezrawaldman.