Ari Ezra Waldman | Federal Prop 8 Trial | Gay Marriage | Law - Gay, LGBT | News | Proposition 8 | Supreme Court | Ted Olson

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.


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  1. You seem to have overlooked Justice Kennedy's musing about the possibility that the Court shouldn't have granted review. If there are not 5 votes to decide the case on the merits, and not a majority to hold that Petitioners lack standing, there is the possibility that the Court could dismiss the writ as "improvidently granted" - a device they've used in the past when they are hopelessly divided. That would leave the 9th Circuit's decision intact, as if review had not been granted.

    Posted by: Art | Mar 26, 2013 5:07:33 PM

  2. I listened through the whole sound tape.....I did not hear a word from Justice Clarence Thomas.

    Isn't he ashamed to just sit there and not participate in the civil rights issue of this era ?

    Posted by: JackFknTwist | Mar 26, 2013 5:11:27 PM

  3. I agree prop 8 hurts California children and I salute Kennedy for bringing this up. But what about my kids in Illinois? And where do religious hooligans get off voting on minority rights anyway? That is for courts to decide. It's one of the judiciary's most important functions. Most Americans aren't Jewish- should Christians vote on what rights Jews can have? Wouldn't be the first time.

    I think the reason they put these two cases together is to dispense with the marriage equality issue once and for all- and not to mirror wrongheaded decisions in the past on miscegenation and sodomy statutes. I think we're getting the whole monty here.

    Posted by: Rob | Mar 26, 2013 5:11:35 PM

  4. I kind of have a sense of wanting to rule on standing or dismiss the case. If so this is probably because there is a basic majority willing to allow marriage equality but not wanting to land in it feet first at the first go. That is they (or at least 5 of them) have a sense of where this is heading but don't want to jump into it yet. We want to get to marriage equality but don't want to do it in one step [it's unseemly and cuts off the democratic debate while in full flow]. Plus there's quite a lot of content to DOMA which has a knock on for marriage equality (provided they take it - there are standing issues here as well).

    The question arises as to when they might go 'all in', if indeed that is the direction they do want to go in. They could stay out of it for quite some time, because thy're not obliged to take cases (though only four votes are needed to take a case). Eventually, with a few more cases heard, marriage restarted in California, a few more states legalising marriage themselves (either by electorate or legislature) there may be five votes to provide a 50 state ruling.

    Posted by: Craig Nelson | Mar 26, 2013 5:13:51 PM

  5. Thomas rarely talks

    Posted by: Factoid | Mar 26, 2013 5:24:51 PM

  6. A response to Scalia's question:

    "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)."

    Sometime between October 8th, 2004 BC (which one bishop identified as the date of Creation) and 14+ billion years ago. The right was acknowledged in the Declaration of Independence and ratified in 1791 when the 10th Amendment became part of the Constitution and acknowledged that rights not enumerated in the Constitution were nonetheless reserved to the people.

    That we have no record of a same-sex couple seeking a marriage license in 1791 does not mean that they could not have done so had they wished.

    Posted by: Rich | Mar 26, 2013 5:35:37 PM

  7. @anon: thank you for your comment. With all due respect, you are wrong about a few things. SCOTUS does not have to take the case to get rid of the ninth circuit precedent. A no standing decision eliminates it, erases it from existing, as you say, leaving only a district ct opinion that has less precedential/persuasive authority than an appellate court decision. The dist ct decision may have been broader, but it has little legal precedential effect. If were talking expressive/political effect, well, that cats out of the bag on that one and overturning or eradicating the ninth circuits opinion wont matter.

    Email by Ari, Typos by iPhone.

    Posted by: Ari Ezra Waldman | Mar 26, 2013 5:51:19 PM

  8. JackFknTwist: ClarenceFknThomas hasn't opened his mouth more than a handful of times since the sorry day he was confirmed in 1991. He just went seven years without opening his stupid maw; breaking the streak in January to say five words - a snide joke. Scalia's lapdog.

    Posted by: Czarina Flo (@CzarinaFlo) | Mar 26, 2013 5:57:16 PM

  9. "Questions of marriage, property and estate distribution are typically governed by State law. The Constitution provides that those Federal rights not specifically articulated in the Constitution fall back to the State's purview. The Federal government, however, does have a right to step in and trump State law's that violate a citizen's fundamental rights. The right to marriage seems absolutely fundamental, and if the states can't seem to recognize that, then Federal government needs to step in and provide everyone with the right to have a legally cognizable marriage.

    Questions of morality and religion should be at issue here. After all, that is why we have separated church and state. This decision should be made on the merits and substance of the issue at hand. Hopefully, the Supreme Court does not side step the issue. Otherwise, it will be right back on their docket in a few more years."

    Posted by: BRAINS | Mar 26, 2013 5:58:49 PM

  10. Scalia also got the answer wrong: After the equal protection clause was enacted in 1865, the Supreme Court recognized that bans on interracial marriage were CONSTITUTIONAL in 1883 in Alabama v. Pace, not unconstitutional. In took another 84 years before they re-examined the issue in 1967 and struck the bans down as unconstitutional in Loving v. Virginia. This is purely a fact.

    Posted by: Joe | Mar 26, 2013 6:16:04 PM

  11. I would have answered Scalia's question about a date when the constitution changed by saying it was the date when the 14th Amendment was ratified.

    As to why it took so long, if you drop something into a crevasse half way up a glacier, you generally don't expect it to be expelled out the mouth the next morning.

    Posted by: Bill | Mar 26, 2013 7:37:16 PM

  12. Cooper's argument is similar to that advanced by some Southerners in the 20th century: the Civil War was unnecessary because slavery would have ended on its own within the next few decades.

    His argument that it should be left to the voters in each state is absurd. We can't continue with millions of Americans enjoying a right that millions of other Americans do not enjoy -- a right that they lose, regain and lose again as they drive from New York to California on vacation.

    If the Full Faith and Credit clause means anything, it means that a legal marriage contract in one state must be recognized in every other state, and any law to the contrary is unconstitutional.

    Posted by: Ninong | Mar 26, 2013 8:08:56 PM

  13. Ari: I think my comments when parsed properly mirror your addendum. On a going forward basis, if the district court ruling stands, it will be cited in other cases. Right now, there are about five or six district court rulings and they don't agree on this issue, but any could be cited in a future case. Depending upon the tenacity of the litigants we'd be back at the SC in five or so years. This always seemed like the ultimate trap that Boise and Olson were laying down in this case.

    Posted by: anon | Mar 26, 2013 8:13:01 PM

  14. I read the transcrpit as well and what stuck with me is this cooper fellow is comfortable calling same sex partnerships, and the states that allow them, an experiment.
    My same sex relationship is NOT an experiment.

    Posted by: Edd | Mar 26, 2013 8:50:54 PM

  15. "How do you get the law defended...?"

    This was addressed in at least one of the OTHER propositions on the ballot in California, according to the amicus briefs.

    You simply WRITE IT INTO the initiative.

    Prop 8 Proponents had the opportunity to do this, and chose not to, leaving the defense (and there was a defense, which they intervened in) up to the usual officials.

    Who honestly believes that anyone in California reasonably thought they were electing a legal team to APPEAL Prop 8, if it was found unconstitutional after being defended in district court.

    Posted by: Randy | Mar 26, 2013 9:28:10 PM

  16. "Mr. Olson showed his confidence, experience,..." I disagree. He sounded panicked and struggling.

    The answer was provided by Scalia himself in his Lawrence dissent. 2003.

    Posted by: Randy | Mar 26, 2013 9:37:54 PM

  17. @Ninong: the full faith and credit clause does not necessarily mean a marriage in one state must be recognized in all states.

    What the clause states in full is: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

    The question is whether Section 2 of DOMA is
    constitutional. Section 2 states, "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship." The wording clearly indicates that congress was trying to use its authority under the full faith and credit clause.

    By contrast, Section 3 of DOMA denies same-sex married couples federal benefits provided to opposite-sex married couples,

    We won't know the outcome until the Supreme Court rules on DOMA. One possibility is that the Supreme Court will rule Section 3 to be unconstitutional, but not Section 2. While we can hope they will eliminate DOMA, there is no guarantee that this will happen.

    Posted by: Bill | Mar 26, 2013 9:52:15 PM

  18. @Edd: it is a bit of a quibble, but don't assume Cooper feels comfortable with what he said. Remember he's a lawyer and is supposed to try to provide he best possible argument for his client. If his client has no case, the best possible argument might sound kind of silly.

    Posted by: Bill | Mar 26, 2013 9:57:46 PM

  19. Re: the "dismissive heartlessness" you noted in Cooper's plea to the justices not to intervene.
    I think you underestimate the opposition. At every step of the prop 8 trial and its sequelae, the anti-marriage equality folks have acted maliciously and malevolently to do everything in their power to deny, delay, put off and destroy the civil marriages of same-sex couples.
    The bastards are looking to gain Bigot Brownie Points by acting as mean-spiritedly and being as obstructionist as they possible can.

    Posted by: Joe the Cynic | Mar 26, 2013 10:06:15 PM

  20. another brilliant analysis (read the first part, and was impressed too). thank you ari. i always love this part of towleroad. what's more, it's so nice hearing comments and questions from readers. it kinda gives different perspective to the issue.

    Posted by: simplet0n | Mar 27, 2013 12:24:59 AM

  21. Cooper sounded absolutely terrified imo. It took him a good 15min. to get up to speed, he had nervousness that was tripping up his speech. When he first started talking I felt good about the poor impression he would make. Anyone else think he sounded like he was a deer caught in the headlights of an oncoming truck?

    He did get up to speed sort of near the end, but I feel he fumbled the case of the decade, and failed to make a strong argument.

    Most of the press analysis I have read seem to agree that he was not convincing to anyone.

    Gay Marriage bans are coming to an end.

    Posted by: Jeff | Mar 27, 2013 2:28:50 AM

  22. @Gigi: "There's LOTS of data up here if you cared to look." The US is incapable of learning any lessons from experiences of people outside its borders. It's a wonder Newtown's Laws didn't have to be independently discovered and ratified by an American.

    The US' story is that it is the unique social pioneer, the melting pot, and the rest of the world doesn't matter even while it yawns at the struggle.

    Posted by: Mike W | Mar 27, 2013 7:51:57 AM

  23. @Gigi: "There's LOTS of data up here if you cared to look." The US is incapable of learning any lessons from experiences of people outside its borders. It's a wonder Newtown's Laws didn't have to be independently discovered and ratified by an American.

    The US' story is that it is the unique social pioneer, the melting pot, and the rest of the world doesn't matter even while it yawns at the struggle.

    Posted by: Mike W | Mar 27, 2013 7:51:59 AM

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