Proposition 8 at the Supreme Court: Analysis of Today’s Argument, Part 1

Charles Cooper, Prop 8 Proponents' attorney, struggles.

CooperThe day began with the attorney for the Prop 8 Proponents, Charles Cooper, having a rough start. He stumbled a bit in his opening, only to receive what can charitably be called "skeptical" questions from Justices Kennedy, Ginsburg, and Sotomayor. Justice Kennedy asked a poignant question about the 40,000-odd children in California who want their parents married, arguing that "those childrens' voices are important in this case." Mr. Cooper evaded, unwilling to say that children are irrelevant, but equally unwilling to concede that their parents deserve any recognition of their union.

But all of that happened after Chief Justice Roberts stopped Mr. Cooper at his 34th word, asking that the attorney address the standing problem. Justice Ginsburg was skeptical of standing, setting Mr. Cooper up with a series of questions and pushing him to admit that granting standing in this case would be unprecedented. What makes your clients so special, the Chief Justice asked (paraphrased)? How are "your clients different from" any other random citizen of California who happens to like Prop 8? Justice Sotomayor, a lion of a questioner even in her appellate court days, was so dissatisfied with Mr. Cooper's answer to the Chief Justice that she asked again, seeking a specific "injury" the Proponents faced, much like teachers narrow questions to their students to make them easier. Mr. Cooper shot back with the Ninth Circuit's standing argument: that Proponents need not show their own direct injury, just injury to the state and a state right to step into the shoes of the California government.

J_robertsThe Chief Justice mercilessly put an end to this, encouraging Mr. Cooper to move on to the merits. Then came a question from Kennedy and then one from Ginsburg. Mr. Cooper was not only unable to make his argument, but struggled to return to his outline upon finishing his generally evasive answers.

Don't read too much into that, though. The Chief Justice is playing a managerial, gate-keeping role here (at least, up to this point, and we're only about 10 minutes in). Anyone who argues before appellate courts has to expect to be interrupted; the key is to both answer the question directly and steer the conversation back to your points. That more than half the bench didn't let Mr. Cooper get a word of his own in before interrupting him is not so much evidence that they don't agree with him as evidence that they didn't like his answers.

Mr. Cooper brought up the Baker v. Nelson canard — namely, that because the Court said in 1971 than there was "no federal question" in Minnesota denying a marriage license to a gay couple, this case cannot proceed. Justice Ginsburg had a few words on that, reminding Mr. Cooper than 1971 was over 40 years ago, before the Court said that gender-based classifications (what Justice Ginsburg spent her career on) get heightened scrutiny and long before gays had a constitutionally protected right to be who they are.

KennedyDuring this line of questioning, Justice Kennedy asks Mr. Cooper if a gay marriage ban could be a gender-based classification. That argument isn't new: Alice can marry Bob, but Alice cannot marry Carrie. Alice could marry Carrie if Alice were a man. So, a ban on gay marriage is discrimination on the basis of sex. That argument has not been very successful in the federal courts, but I'm more interested in how Justice Kennedy asked the question. He said, "It's a difficult question that I've been trying to wrestle with," and I believe him. Justice Kennedy, like the Chief Justice, is a thoughtful conservative scholar. He has shown favor toward gay rights cases in the past, but alongside his generation, he is struggling with society advancing and changing. Like Rob Portman, I think he is indeed struggling with this question, and the fact that he felt the need to express append this rather emotional postscript to his question is telling.

A few minutes later, Justice Sotomayor talks scrutiny, without using the words. She asks Mr. Cooper why the Constitution shouldn't treat gay people as a protected class. He responds by saying that the "class" of gays is amorphous, with homosexuality not immutable.

KaganBut it is Justice Kagan who gets Mr. Cooper to admit the central illogic of his argument. He says that allowing gays to marry does not serve the state interest in encouraging responsible procreation. Justice Kagan realizes Mr. Cooper is missing the point: "Is there any reason that you have for excluding them? In other words, you're saying, well, if we allow same-sex couples to marry, it doesn't serve the State's interest. But do you go further and say that it harms any State interest?" Mr. Cooper says yes because that would be redefining marriage. The end result of this less-then-one-minute exchange is that Mr. Cooper admitted that Prop 8 is not rationally connected to the legitimate state interest of encouraging heterosexuals to marry. He merely said gay marriage doesn't advance that particular interest, and the only so-called harm is this amorphous, imaginary concern about "redefining" marriage. Justice Scalia chimed in to give his "harms," at which point Justice Ginsburg shot back at him (as if ignoring Mr. Cooper). This is where this case will be won.

Justice Breyer gets the gold star for pointing out that infertile heterosexual couples marry all the time. The 52-year-old Justice Kagan, who isn't married and has no children, got a laugh when she asked about all those couples that are marrying after 55 and are producing "very few" children. And, the matriarch of a large family, Justice Ginsburg, raised the salient point about a case called Turner v. Safley, which guaranteed inmates the right to marry: they can marry she said, even when incarcerated and unable to have children. Mr. Cooper had the nerve to respond that there are very few, if any, cases where both persons in a heterosexual marriage are infertile because men can father children at almost any age. You could hear an audible groan from the audience at that one.

Then, Ted Olson came to the lecturn.

FOR PART 2 of the analysis, CLICK HERE

LISTEN to the AUDIO and read the transcript of today's arguments HERE.


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.


  1. Reality says

    They aren’t buying it. NBC’s Pete Williams reports that justices’ comments surrounding California’s Prop. 8 case make it “quite obvious” the Supreme Court is unlikely to issue a sweeping ruling that same-sex couples have a constitutional right to marry.

  2. bryan says

    Thank you for breaking this down and shearing. Today was such an exciting day and Historic. I would of loved to have been present. I’m looking forward to see how this turns out. It’s going to be a long wait until June!! Equality For All!!!!!!

  3. JohnP says

    Not having much legal knowledge, I am surprised that this case made it to the Supreme Court at all… afterall, Prop 8 only applied to California. I suspect the Court will dismiss the case which will let gay couples in California marry. I don’t really expect a sweeping ruling. However, it is DOMA where we have to worry about as that ruling could be sweeping. A narrow ruling would be horrible.

  4. John says

    Don’t trust network attempts to guess what the justices are thinking, based on their questions. These are the same networks that couldn’t even read the “Obamacare” decision to properly understand that the law had been affirmed.

  5. Blake says

    Fascinating, exciting, and nerve-wracking. While I’d be surprised at a sweeping national ruling, who knows. All of the SCOTUS speculation leading up to the Obamacare ruling last year was wrong in hindsight…

  6. says

    I didn’t think I would enjoy listening to the back and forth argument but in fact I found it compelling.

    I don’t pretend to fully understand the “rational basis” scrutiny as opposed to ” heightened scrutiny” argument but all the other points were fascinating, especially Justice Sottomayor, she is a razor !

  7. KT says

    I can’t wait until June when this will all be over. All the analysis, debating, predicting, and hyping of these two cases is driving me insane. We can’t influence or read the justices’s minds – so let’s not spend the next three months publishing hundreds of articles trying to do just that.

  8. MiddleoftheRoader says

    Read the court transcript which is now public, and interpret as you see fit without the media or anyone else putting their twist. Based on that transcript, it seems to some of us:

    1) There aren’t 5 votes for finding a constitutional right to same-sex marriage. It’s possible Kennedy could change his mind, but he seemed focused on the problem of going into “unchartered waters” based on “sociological evidence” If he really thought marriage was a constitutional right for everyone and that sexual orientation is a protected class, then he probably wouldn’t be troubled by the lack of clarity in the “sociological evidence”. If that evidence is truly unclear or even “tied”, then a “tie” goes in favor recognizing constitutional rights, not denying them.

    2) None of the Justice like the 9-state solution that the Administration proposed. From an intellectual standpoint, it’s probably the most well-grounded because the Administration is correct that once a state allows everything but the word “marriage”, it’s irrational to deny use of that word. But from a practical standpoint, even the liberals don’t like this approach, nor does Kennedy, so it probably isn’t going anywhere.

    3) If it comes down to dismissal on the ground that review was “improvidently granted” or dismissal for lack of standing — let’s hope it NOT lack of standing. If there was no standing, then ONLY the district court decision might remain, which covers only California — but also some Justice said that another anti-marriage group or person might be able to challenge the rejection of Prop 8 in another case elsewhere in CA (like a local court clerk who won’t perform marriages for same-sex couples)! We sure don’t want that. It’s better if they dismiss because review was “improvidently granted” since that would leave the Ninth Circuit decision in place, and it’s unlikely anyone else (like an anti-gay court clerk) could bring another case elsewhere in CA.

    In the end, it’s impossible to predict….we’ll have to wait until June 30. Let’s hope the DOMA case goes better.

  9. Caliban says

    Ginsburg brought up Turner v Safley, “which guaranteed inmates the right to marry: they can marry she said, even when incarcerated and unable to have children.”

    Perhaps I’m wrong, but it’s my understanding that that ruling DID establish that marriage is a “right,” not a “privilege,” and a very fundamental one at that. After all, people who are in prison have had many or most of their rights stripped from them. They can’t vote, they don’t have privacy, etc. And in the case of Death Row inmates the state is presumably prepared to take away their greatest “right,” the right to life itself. Yet the court still ruled that the spousal relationship, not children or anything else, was so special that inmates could not be denied it.

    Which sounds like a fundamental right to me.

  10. Jay says

    “Mr. Cooper had the nerve to respond that there are very few, if any, cases where both persons in a heterosexual marriage are infertile because men can father children at almost any age.”

    While I suspect that the left-leaning justices did not want to pluck this low-hanging fruit… To me this sounds as if Mr. Cooper is advocating for a traditional/Biblical definition of marriage in which a man and woman are married…and when she can no longer produce heirs for the man, he takes a second wife, or a concubine, or a slave, or a…

  11. AdamA says

    The mutability of sexuality argument is ridiculous; many identities are mutable, including race. (Our own president came to identify as black over the course of his lifetime. Sometimes people are “white” merely because they are most frequently perceived that way. Et cetera.)

  12. anon says

    Arguments that Prop 8 violates the 14th on gender discrimination or the 1st on free speech grounds are not going to go anywhere. They’ve been attempted in other district courts to no effect.

    Marriage as a right is embedded in the notion of fighting eugenics. Were it not for WWII and the holocaust, eugenics might have taken hold in several advanced countries (though Sweden and Australia did their best to try it out). Conservatives dismiss the notion that gay marriage advances the anti-eugenics cause. This isn’t so clear-cut though, because not reproducing certainly is as much of a right as having kids. Anti-Eugenics sentiment is not found in the Constitution per se, but no court is going to go back to the “three generations of imbeciles is enough” arguments of the 1910’s.

  13. Kyle says

    @MiddleoftheRoader I listened to the audio of the arguments. Kennedy seemed to bring up social science data only as a rhetorical concession to Cooper and Scalia in order to introduce his point about California same-sex couples’ 40,000 children. He interrupted Scalia arguing that same-sex marriage is doubtfully harmless because of a supposed lack of data on the effect of children being raised by two parents of the same sex. Kennedy was basically saying to Scalia, “Yeah, you have a point, but…” and bodes far more favorably than many analysts are speculating because his ultimate point was that tens of thousands of kids want their parents to be married and only the state is preventing that.

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