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...

Chief Justice John Roberts' Lesbian Cousin Will Attend The Supreme Court's Prop 8 Hearing

Chief Justice John Roberts will have a gay relative in the audience as he hears arguments over Proposition 8 on Tuesday. Jean Podrasky, Roberts' 48-year-old liberal lesbian cousin who wants to marry her partner will be watching, the L.A. Times reports:

Roberts is a conservative appointed by President George W. Bush in 2005. Podrasky, who is more liberal, said she rooted for his nomination to be approved by the U.S. Senate. “He is family,”  she said.

Podrasky lives in San Francisco and usually sees Roberts only on family occasions. His mother is her godmother, whom she adores. She said Roberts knows she is gay and introduced her along with other relatives during his Senate confirmation hearing. She hopes he will meet her partner of four years, Grace Fasano, during their Washington visit. The couple flew to Washington on Sunday.

“He is a smart man,” she said. “He is a good man. I believe he sees where the tide is going. I do trust him. I absolutely trust that he will go in a good direction.”

Adopted Son of Gay Dads Writes Powerful Letter on Marriage Equality to SCOTUS Chief Justice John Roberts: VIDEO

Daniel, the 12-year-old son of the Leffew Family in Northern California (you may have seen some of their videos online), wrote a powerful letter to Chief Justice Roberts about the Prop 8 and DOMA cases, after reading that Roberts has two adopted children of his own.

Watch Daneil read his letter, AFTER THE JUMP...

Last week National Organization for Marriage Chairman John Eastman smeared Justice Roberts and his family by calling adopted children "second-best".

NOM Chair John Eastman Denies Smearing Chief Justice John Roberts and His 'Second-Best' Adopted Kids

NOM Chairman John Eastman says he didn't mean to tell the Associated Press that Supreme Court Chief Justice John Roberts' adopted kids were "second-best".

Said Eastman in the AP story:

Gay marriage opponents said they are not worried about the votes of Roberts and Thomas.

"You're looking at what is the best course societywide to get you the optimal result in the widest variety of cases. That often is not open to people in individual cases. Certainly adoption in families headed, like Chief Roberts' family is, by a heterosexual couple, is by far the second-best option," said John Eastman, chairman of the National Organization for Marriage. Eastman also teaches law at Chapman University law school in Orange, Calif.

Writes Eastman in a statement today:

"An article by the Associated Press, excised in part by The Huffington Post, grossly misrepresents my views on adoption. I believe that couples who adopt children are heroes and do a great service to society, and to the children they adopt. I strongly believe, based on thousands of years of experience and countless social science studies, that children do best when raised by a mother and a father within the bounds of marriage. I commend all those couples who selflessly give of themselves to raise a child who, through no fault of her own, has been deprived of a mother and father. There is nothing 'second best' about adoption."

A Look at Supreme Court Justice John Roberts and Gay Marriage

The Wall Street Journal's Jess Bravin looks at Supreme Court Chief Justice John Roberts and the upcoming case on DOMA and Proposition 8 the Court will be considering at the end of the month:

Chief Justice Roberts doubtless knows "that history is going in a certain direction," even if he isn't persuaded that the Constitution requires invalidation of laws denying recognition to gay marriages, said Richard Pildes, a law professor at New York University. If that leads him to side against Mr. Obama's position, it could place the chief justice in "a tragic kind of position—knowing how a decision they believe is correct today is going to look bad 15 years down the road."...

...Legal experts say that how the chief justice expresses his position on gay marriage—whether he writes his own opinion or joins that of another justice—could be as significant as how he votes. Should he vote to uphold either or both of the laws against gay marriage, his opinions will be parsed for indications of his attitude toward gay couples and whether he writes favorably of political trends that could expand gay marriage without court intervention.

Under that alternative, in 20 years he could say, "See, we said this is a matter for legislative resolution and not judicial resolution, and things turned out well," said Harvard law professor Mark Tushnet. "To be able to do that, the opinion has to be very carefully written to make it clear that the court is taking no position on the merits of gay marriage."

On a side note, the Chairman of the National Organization for Marriage John Eastman smeared Roberts yesterday for giving his adopted children the "second-best" option. Whether that smear has any effect on his thinking about fairness and equality may never be known.

Related...
Roberts Worked Behind the Scenes on Gay Rights Case [tlrd]

NOM Chair Calls Supreme Court Justice John Roberts' Decision to Adopt Children a 'Second-Best' Option

A new AP story takes a look at the families of the Supreme Court justices and looks at how their personal lives might affect cases they take on.

The article notes that Justices John Roberts and Clarence Thomas both have adopted children and contains a particularly offensive quote from NOM Chair John Eastman:

"The diversity of the family lives of the justices mirrors the diversity of American families overall," said Andrew Cherlin, a Johns Hopkins University sociologist who studies families and public policy.

Cherlin, who does not follow the high court especially closely, wondered whether the gay marriage cases might take on a similar dynamic. "If justices consider their own family lives in these cases, it may change the way they rule," he said.

...

Gay marriage opponents said they are not worried about the votes of Roberts and Thomas.

"You're looking at what is the best course societywide to get you the optimal result in the widest variety of cases. That often is not open to people in individual cases. Certainly adoption in families headed, like Chief Roberts' family is, by a heterosexual couple, is by far the second-best option," said John Eastman, chairman of the National Organization for Marriage. Eastman also teaches law at Chapman University law school in Orange, Calif.