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...

Attys Ted Olson, David Boies, and Prop. 8 Plaintiffs Speak After Today's Supreme Court Arguments: VIDEO

Attorneys Ted Olson and David Boies and the Prop. 8 plaintiffs Sandy Stier, Kris Perry, Jeff Zarrillo and Paul Katami spoke at a press conference following arguments before the Supreme Court.

Watch it, AFTER THE JUMP...

Attorneys Ted Olson and David Boies on the Way to the Supreme Court Prop 8 Arguments: PHOTO

Attorney Ted Boutrous tweeeted this photo moments ago of AFER attorneys Ted Olson and David Boies on their way to the Supreme Court.

FRC Orders Members to Pray That Ted Olson and David Boies' SCOTUS Arguments are 'Inept, Confusing and Unconvincing'

The Family Research Council is giving its members "prayer targets" surrounding the Supreme Court's consideration of DOMA and Prop 8, asking them to pray that Ted Olson and David Boies "present their arguments in an inept, confusing and unconvincing way" and "fail to gain traction in the minds of the Justices," Good As You reports:

From the FRC site:

For Bible-believing Christians this assault on marriage is not just against society. It is an assault against Jesus Christ, Himself. Whatever the court decides, "Jesus Christ, the same yesterday, today and forever" (Heb 13:8). God created marriage to bless mankind, but also to be a visual representation on earth of the eternal relationship between Christ and His Church (Eph 5:31-32). Christians have an obligation to stand for marriage, not only because it is good for society, but for the honor of Him who created it.

May God guide us in praying for each member of the Supreme Court: for Samuel Alito, Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, Anthony Kennedy, Chief JusticeJohn Roberts, Antonin Scalia, Sonia Sotomayor, and Clarence Thomas. May each Justice be governed by the fear of God and fidelity to the moral law and Constitution (2 Sam 23:3; Ps 9:17; 111:10; Pr 1:7; 9:10; Is 5:20).

May the attorneys defending traditional marriage (see ADF Prayer Guide) be given anointing, clarity, effectiveness, conviction and persuasiveness in presenting their arguments. May traditional marriage prevail in the minds of a strong majority of the justices, and may traditional marriage be reaffirmed as the law of the land (Pr 16:1, 11; 25; 18:17; 21:3; Is 9:7; Mt 19:4-6; 2 Cor 5:11).

May those arguing on behalf of same-sex "marriage" present their arguments in an inept, confusing and unconvincing way. May they fail to gain traction in the minds of the Justices. May the right of Californians to amend their state constitution to protect marriage be confirmed by the Court, and may the Defense of Marriage Act be ruled constitutional (Lev 20:all; 1 Sam 2:8-10; 2 Chr 14:11; 20:12-27; Pr 22:28; 24:21; Is 8:18-20; Dan 7:25-27; 2 Cor 2:5).

 

Prop 8 Attorneys Ted Olson and David Boies Ink Book Deal

A big book is coming next year on the federal challenge to Proposition 8 now headed to the Supreme Court, the AP reports:

Democrat David Boies and Republican Theodore B. Olson have signed with Viking for "A Just Cause: Law, Love, and the Case for Marriage Equality." Viking told The Associated Press on Wednesday the book is scheduled for mid-2014.

"Our collective journey tells of a crucial and historical civil rights movement that brings us closer to the ideals on which our country was founded," Boies, 71, said in a statement issued by Viking.

Olson, 72, said he and Boies between them have "nearly 100 years in the law."

"We have never handled a more important, dramatic and emotionally compelling challenge," he said in a statement.