Thank the Law for Marriage Equality Momentum

By ARI EZRA WALDMAN

In both the run up to and in the wake of historic Supreme Court arguments on gay equality (which you can read about here, here, here, here, and here), several political leaders from both parties have come out in favor of the freedom to marry. We've had Jon Huntsman, a Republican; Mark Begich, a Democrat; Rob Portman, a Republican; Hillary Clinton, a Democrat; Mark Kirk, a Republican; Bob Casey, a Democrat; and many others. And, they are just a tiny fraction of a fraction of the 58 % of Americans that now support our quest for marriage recognition.

Senators Begich, Portman, Kirk, and Casey are 4 among the 52 United States Senators -- more than 1/2 of that august body -- on the right side of history. Senator Tim Johnson, Democrat of South Dakota, is the latest, and Sen. Kirk is the latest Republican to buck the continued bigotry of his party's base and leadership, a position for which he deserves credit. But, let's not put the latecomers above the vanguard, like Senator Ron Wyden (pictured), a Democrat, who came out for marriage equality in 1995, before "marriage equality" was the de rigueur phrase and long before every other proud progressive felt comfortable following his lead.

Conservatives and liberals have blasted some our most recent allies as "phony" opportunists, spineless, or worse. Chief Justice Roberts even derisively characterized them as "falling over themselves" to support us. Others say we should welcome the evolution as either the nature of the political beast or the product of a personal journey. That's a discussion worth having, but at the moment, I am more interested in what got us here.

If you have been reading the news over the past two weeks, your head might be spinning from the tidal wave of pro-equality support. I mixed those metaphors for a reason: it's a surprisingly accurate description. One by one, many of our politicians have jumped on the marriage bandwagon. There were some important moments along the way -- President Obama and Rob Portman come to mind -- but the momentum reached a climax in the week leading up the Supreme Court hearings on Hollingsworth v. Perry, the Prop 8 case, and Windsor v. United States, the challenge to DOMA.

Timing was not our only ally; the law was, too. Federal court challenges to two harmful and discriminatory laws gave us the opportunity to replace the lies and fearmongering of the DOMA Congress and the Prop 8 proponents with truth and justice. And, the public learned, taking to heart the well-publicized lessons of court decision after court decision. Generational shifts are playing their role, but the law was the catalyst of the falling dominoes we read about every day. Hollingsworth and Windsor pushed public opinion, laying bare the emptiness of our opponents' arguments and the virulence of their hatred. There was little for politics to do other than to try and keep up.

I consider the catalytic effect of the law AFTER THE JUMP...

Seven Takeaways from Marriage Week at the Supreme Court

BY ARI EZRA WALDMAN

For three hours over two days, the Supreme Court discussed the freedom to marry. The justices asked questions about the law of the love after recent polling showed that 58 % of Americans, and a slew of moderate-to-conservative politicians, supported equality. This trend caught the attention of an unusually ascerbic Chief Justice, who said that leaders were "falling over themselves" to support gay rights. His convenient ignorance of the litany of burdens and discriminations we face every day, his insensitivity and willful ignorance of the plight of sexual minorities, and Roberta Kaplan's inadequate response to his flippancy should not damper the euphoric feeling that what happened this week was historic. The freedom to marry had a hearing at the Supreme Court, where the shallowness of discrimination was laid bare for the world to see. As we await favorable decisions in June, the world is a different place today than it was on Monday.

Many media are making conclusions about the end of DOMA, a narrow standing decision in the Prop 8 case, and the end of the culture wars with a victory for gay rights. Some of these predictions may turn out to be right, but we can't know that and it misses the true legal and political lessons from the last two days.

Having already offered detailed summaries and initial analysis of the Prop 8 (Part 1 and Part 2) and DOMA hearings (Part 1 and Part 2), I would like to take a step back and think more broadly. Here are the seven takeaways from Marriage Week at the Supreme Court.

1. The bench was "hot," asking lots of questions, but don't read too much into those questions.

Just because a justice asks a question critiquing one side's argument does not necessarily point to his or her ultimate decision. Judges play the devil's advocate for many reasons other than preening. If these cases were so open and shut, there would be no need for briefs, reply briefs, and oral argument; neither side ever has a perfect case. Therefore, the justices need to probe the logical, legal, and policy problems, not only to help them decide the case but also to determine the best way to decide the ultimate question. Oral argument questions are also just as much about persuading colleagues as challenging attorneys. Justice Ginsburg may have thought of something that the Chief Justice missed, or vice versa; Justice Sotomayor's demand that Paul Clement give her a single reason for discriminating against gay couples, and his inability to do so, may have worried the Chief and Justices Kennedy and Alito about siding with an impossibly weak argument.

SIX ADDITIONAL TAKEAWAYS, AFTER THE JUMP...

DOMA at the Supreme Court: Summary and Analysis of the Argument, Part 2

BY ARI EZRA WALDMAN

Let's pick up where we left off. So far, we've learned that some of the justices expressed concern about jurisdiction to hear Windsor. But, Professor Jackson's argument did not fare well at the Court, though, either. Several justices were likely moved the fact that the federal government is still on the hook for Edie Windsor's $350,000 claim. The mere fact that the Administration's tactics of first defending, then opposing, then winning, and still appealing is unprecedented, does not necessarily make it improper. The Administration's obligations to Ms. Windsor gave it the power to appeal to a higher court, so the Court has jurisdiction to hear the case no matter what. The standing of House Republicans to be the ones to defend DOMA becomes less important, in that case. 

We learned that whether the House has standing seemed less of a concern for the Court than whether the procedure the Administration used to get the case got to the Court was proper. It is for this reason, taking it all with a healthy dose of salt, that I think the Court will find it has jurisdiction to hear the case.

AFTER THE JUMP, let's proceed to the substantive portion of the argument, where Paul Clement showed his true colors as an abettor of discrimination and the Court gave us every reason to think it finds DOMA unconstitutional. The question now is the rationale: Will we get a federalism/states' rights decision that would give us a victory, but come back to bite us the next time we're trying to defend a federal civil rights law we like? Or, will we get an equal protection holding that will advance the cause of gay rights in the courts for generations to come? I don't think we can answer this from the questioning alone, but we can tentatively conclude that:

• Federalism played an important role in the justices' questioning, but not to the exclusion of equal protection. Look for a decision to be informed by both.

• When it comes to Justice Kennedy, he showed consistent skepticism on federalism grounds.

• The Chief Justice's toughest questions to the anti-DOMA attorneys involved a somewhat related hypothetical, suggesting that the Chief was scraping the bottom of the barrel to find a pro-DOMA argument.

CONTINUED, AFTER THE JUMP...

DOMA at the Supreme Court: Summary and Analysis of the Argument, Part 1

BY ARI EZRA WALDMAN

Marriage week continues at the Supreme Court with today's argument on the constitutionality of the Defense of Marriage Act (DOMA). This case raises the question of whether the federal government can refuse to recognize the marriages of gay couples who get married in the states. DOMA Section 3 defines marriage as only between one man and one woman for federal purposes and, therefore, prevents those couples from accessing thousands of federal benefits and obligations attendant to marriage, like joint tax filing and spousal sponsorship visas.

Yesterday, during the long hearing on California's Prop 8, we learned that several justices were concerned about the Prop 8 proponents' right to be there at all (standing). We saw Justice Scalia's insensitive snark, powerful questioning from Justices Kagan and Sotomayor, pointed insight from Justice Ginsburg when she questioned the Prop 8 proponents' attorney, Charles Cooper, and strategic arguments from Ted Olson and Don Verrilli. We also saw Justice Kennedy "struggling" with the issue of marriage discrimination as sex discrimination and Justice Sotomayor pummelling Mr. Cooper with the implications of his discriminatory positions.

Will we see some of the same concerns raised today? The DOMA case raises its own standing concerns that could get it thrown out, which is why the Court allocated a full 50 minutes just to the standing question. Setting aside so much time to one specific question, however, does not necessarily mean the justices are more focused on standing in DOMA than they were in Prop 8. Rather, because all parties have always agreed that standing was met, the standing question was never fully addressed. Think of the first 50 minutes as the Court's attempt to make sure it gets all sides of the issue, with Harvard Law Professor Vicki Jackson arguing against standing. Then, the Court moved to the merits, which is where it got interesting.

Nothing in the oral arguments made me change my view of Windsor: This case gives conservatives and liberals the opportunity to come together to declare DOMA unconstitutional (starting at 2:37). And, although I think we should be cautious about drawing substantive conclusions based on questioning from judges who often play the devil's advocates, today's argument gave us a few clues about what the justices were thinking:

• The Court was indeed concerned about standing, but it doesn't appear likely that the Court will toss Windsor on standing or jurisdictional grounds. Justice Ginsburg is always a particularly active questioner on standing issues; she is a former masterful civil procedure professor. Several justices, including those as different as Justices Alito and Kagan, appear on board for jurisdiction.

• Federalism and equality were at the core of most of the substantive questions about DOMA. Justice Kennedy was particularly concerned about federalism and how DOMA intrudes into the realm of the States. But, don't think that his line of questioning means he is blind to the equality concerns.

• Justice Alito showed deep skepticism about how DOMA could ever be related to encouraging heterosexuals to get married. That's a telling question from a justice who does not seem to play the devil's advocate a lot.

In short, the argument in Windsor exceeded even Ted Olson's success at the Prop 8 argument. Edie Windsor will win; it is just a matter of how big a win it will be.

AFTER THE JUMP, I summarize some of the highlights of the first part of today's argument and offer some conclusions and analysis. The standing material is a bit arcane, but I did my best to spice it up with some sense of the importance of the issue in the courtroom.

CONTINUED, AFTER THE JUMP...

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

BY ARI EZRA WALDMAN

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.

Here'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,
AFTER THE JUMP...

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

BY ARI EZRA WALDMAN

As the plaintiffs, attorneys, and assorted celebrities filed into the grandiose Supreme Court building at One First Street, you could get the feeling -- even from afar -- that something special was happening today. Paul Katami and Jeff Zarrillo walked in holding hands, as did Kris Perry and Sandy Stier. Ted Olson looked prepared and at ease, exactly what you would expect from a man who has argued more cases in front of the Supreme Court than he probably cares to count. In short, the day was momentous. Would the argument be, as well?

In a word, yes. I will let the prognosticators prognosticate, but what I would like to offer you is a legal perspective. The argument exceeded my expectations in terms of the questions the justices posed to counsel on both sides and what those questions might say about the justices' concerns. But, let's be clear: While the media have already taken to Twitter and their own websites to predict that this or that question from Justice Kennedy means that he will make this or that decision, those predictions often fall far south of meaningful. Any lawyer who has argued before a "hot bench" -- namely, active questioners -- knows that sometimes, especially in politically charged environments, judges of all stripes challenge both sides. In fact, a study of decades of Supreme Court arguments based on the number of hostile questions a given justice asked a given party showed no statistically significant correlation with that justice's ultimate decision in the case (notably, there was a statistically significant relationship found between softball questions and a favorable decision).

The actual hearing can tell us a few things, like what is on the justices' minds. Was Justice Kennedy mostly concerned about standing, or was he asking a lot of questions about equal protection? If a justice only asks about one issue, that's the one he or she is focused on. Did the Chief Justice ignore the scrutiny question and focus on how the case is really only about the word "marriage"? If so, that might only mean that he has no questions on standing, that he already made up his mind, and not necessarily that he thinks the Prop 8 proponents actually had standing. 

With that in mind, follow me AFTER THE JUMP for the first of two posts offering a chronological summary and analysis of some of the more important highlights of the argument. When we all have had time to sit back and reflect, we will post a thematic analysis around the substantive questions in this case: standing, scrutiny, and equal protection.

CONTINUED, AFTER THE JUMP...