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Reaction to Prop 8 oral argument (Audio added)

Reaction to Prop 8 oral argument (Audio added)

The oral argument just concluded.  The audio will be posted later.  UpdateAudio is here. Transcript is here.

Expect an avalanche of spin from various pundits — as if the spin matters.

I’ll link to numerous sources which I deem on the low-end of spin meter.  Beware predictions.  Who guessed how Chief Justice Roberts would end up on the Obamacare case.

A blow-by blow account is at the Wall Street Journals Live Blog: Supreme Court Weighs Gay Marriage.

To give you an feel for the ups and downs and perils of predictions, here are SCOTUSblog’s tweets during the oral argument:

Twitter - @Scotusblog - Marriage Oral Argument tweets

Tom Goldstein from SCOTUSblog has his post-argument reaction:

… The bottom line, in my opinion, is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.

Several Justices seriously doubt whether the petitioners defending Proposition 8 have “standing” to appeal the district court ruling invalidating the measure.  These likely include not only more liberal members but also the Chief Justice.  If standing is lacking, the Court would vacate the Ninth Circuit’s decision.

The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy.  For the more liberal members of the Court, there was no clarity on how broadly they would rule.

But Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail.  He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new.  He also noted the doubts about the petitioners’ standing.  So his suggestion was that the case should be dismissed.

Goldstein suggests that if the supporters of Prop 8 have no standing to defend the law, the 9th Circuit had no jurisdiction, but the District Court decision declaring Prop 8 unconstitutional still stands. [See Update below] I’m not seeing that last point. If there is no standing then there arguably was no federal jurisdiction also at the District Court level.  The standing issue was addressed in an earlier post about the 9th Circuit.  If I’m wrong on that, I’ll update.

Ed Whelan, who filed a brief in the case, reaches a similar conclusion:

A ruling that Prop 8 proponents lack standing would mean that the Ninth Circuit also didn’t have jurisdiction. Further, as UC Davis law professor Vikram Amar (a former Blackmun clerk and not a conservative) and I both discussed two years ago, a ruling that Prop 8 proponents lack standing may also compel the conclusion that the district-court proceedings lacked the adverseness needed under Article III—and that Judge Walker’s judgment should therefore be vacated in its entirety.

Interesting exchange via Volokh:

JUSTICE SCALIA: I’m curious, when -­ when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. When do you think it became
unconstitutional? Has it always been unconstitutional? . . .

MR. OLSON: It was constitutional when we -­as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -­

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.

Update 3-27-2013: In a new post Goldstein elaborates on the effect of a lack of standing on the District Court, arguing that the invalidation of Prop 8 would survive but only as to the actual parties in the case, leaving it unclear whether the ruling applies to others:

There is only one question on which it seemed five Justices might agree: the judgment should be vacated because the petitioners lack standing. The Chief Justice and the four more liberal members of the Court indicated their sympathy for that position. If they vote that way, the Ninth Circuit’s decision striking down Proposition 8 will be vacated – wiped from the books – but U.S. District Judge Vaughn Walker’s judgment invalidating Proposition 8 would remain unaffected. That district court ruling would apply to the parties in the case. There would be additional litigation about whether and how Proposition 8 would be applied elsewhere.

I’m still not seeing that nuance, but it would at least render the District Court opinion relatively meaningless as a general striking down of Prop 8.


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American Freedom Fighter | March 26, 2013 at 11:47 am

It seems to me that if same sex couples really only wanted equality under the law, they would have agreed to civil unions when Bush and Cheney were on board in 2004.

It seems to me this is about fundamentally transforming the society.

It seems progressives want diversity in *everything* except for marriage. Then one size, and one name, fits all.

    This. “Equality” was merely the Trojan horse to force their will upon an unsuspecting and naive populace. They were never interested in “equal rights;” they want uber-rights, and they want society to accept their “lifestyle” choice as normal.

    Otherwise, you’re a “bigot” and “homophobe,” don’cha know.

      Ragspierre in reply to nordic_prince. | March 26, 2013 at 12:47 pm

      Slightly different take…

      There is a militant minority of “gay” people for whom “tolerance” is not sufficient.

      They require that we declare them “normal” in all ways.

        Doug Wright in reply to Ragspierre. | March 26, 2013 at 1:59 pm

        Ok, I’ll buy into your argument. So, which partner will be the “Mommy,” or “Wife,” of the partnership and which will be the “Daddy,” or “Husband?”

        Of course, those first descriptive terms for each partner only matter when the loving couple decides to raise a family, which raises other questions regarding how that is to be accomplished; natural birth has happened to some same-sex couples now, as had adoption too.

        Please note I’m not saying that family can’t happen, only when it happens, which it will and has already! After all, isn’t that what we say happens in a “normal” marriage?

        Lastly, to go back to the professor’s previous posting on same-sex relationships, whatever happened to that older concept of “We the People?”

    See, the proper way to counter the “equality” argument is simple:

    They ALREADY have equality. They are free to marry or not marry someone of the OPPOSITE gender at their whim. What they are asking for is a SPECIAL right to marry whom they wish to marry, to which there is no Constitutional guarantee.

    You don’t get to marry someone simply because you love them and they love you. PERIOD. There ARE limits in place. To say that you do invalidates vast swaths of laws passed by States which the pro-homosexual marriage crowd would be ashamed to even speak of.

    That being said, it sounds like Kennedy is trying to place this on the same analytical review footing as review of anti-incest laws. That it would be prohibitable if there is a scientific reason against homosexual marriage, but not if there is no scientific reason not to do so. Basically I think that he’s trying to reduce the analysis burden to a “Rational Basis” standard, but then testing to see if the laws meet even that level (which Prop 8 does, if for no other reason than the State has an interest in fostering familial settings with both male and female role-models, as opposed to both male or both female role models).

Kennedy VERY uncomfortable striking down #Prop8. Suggests dismissing case. Would leave in place 9th Cir pro-#ssm ruling.

How is not overruling the 9th Circuit different from striking down Prop 8, since the 9th Circuit struck down Prop 8?

To quote the emminent philospher Geddy Lee: “If you choose not to decide you still have made a choice.”

“He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain…”

WTF does that have to do with whether or not there is a “right” to marry in the Constitution?


Expect an avalanche of spin from various pundits — as if the spin matters.

Actually, I think spin played a decisive role in Chief Justice Robert’s weird ruling on Obamacare. Don’t underestimate the lure of getting the New York Times to toss you a bored complement, or at least to stop portraying you as a combination of Hitler, Attila the Hun, and Vlad the Impaler (for a few microseconds anyway). There are many formerly principled conservatives in DC who now wilt at the prospect of not being invited to the right cocktail parties, or go into a blind panic when they are the butt of a joke on Letterman.

Washington DC is Spin City, and those who dwell there long enough eventually fall prey to its “charms”.

    I’m sure that the spin DID play a role in The Traitor John Robert’s Obamacare decision. That’s exactly why I refer to him as “The Traitor.” He abandoned his principles of Jurisprudence because the “press” said that to stand by them would diminish the court’s stature, because don’t you know that health care is a right (which it most certainly is not).

    Rather than stand on principle and say “this is wrong and exceeds the scope of what the government should be allowed to do,” he instead opted to say, “well, it’s not ‘commerce’ but the Government can tax and spend for general welfare, and this qualifies.” By doing so, he eviscerated ANY limitation on what the government can do, EVER, so long as they call it a “tax” or it can be construed as a tax.

“He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain…”

How is that within the purview of the Court?! I always thought that their business is to judge the constitutionality of the cases before them, based on the legal merits.

Proposition 8 oral argument

Someone has an evil sense of humor.

You know, like someone could have said/typed, ‘The Supreme Court is Hearing the Case. OR ‘street language’ ‘They be talkin’ at it’, but “oral argument”. Won’t that prejudice the entire case. 🙂

“If there is no standing then there arguably was no federal jurisdiction also at the District Court level.”

I’d say not just arguably, but certainly.

If a party has no standing, the court cannot assert jurisdiction. Period. And that is the most fundamental of issues in any case.

    We’ve seen the Court play games with standing before to get to take or shun cases before.

      Ragspierre in reply to Chuck Skinner. | March 26, 2013 at 2:22 pm

      Yeah, but that was not my or Prof.’s analysis.

      They could strain to standing, and I think there is good reason to set some new precedent here (see my comment on “executive nullification”).

      But we were talking about them finding no standing, which would leave the courts below no jurisdiction, voiding whatever they did.

But if it is the defenders of Prop 8 who lack standing, that doesn’t mean the original plaintiffs against it lacked standing. Remember the defenders only had to come in because California refused to defend its own law.

    Ragspierre in reply to Estragon. | March 26, 2013 at 2:29 pm

    There is a canon in the law that for there to be a “controversy” there must be adversary positions.

    Hence, you can have a party with standing and not have a controversy the court may consider.

      Ragspierre, are you saying that the refusal of California to defend Prop. 8 stripped the federal courts of jurisdiction to adjudicate it? That strikes me as an absurd conclusion. Let’s say that Mississippi voters pass a constitutional amendment that requires segregated schooling. The Mississippi government, recognizing that this violates the Equal Protection Clause, refuses to defend it. So now, the amendment is immune from challenge and stands indefinitely?

        Ragspierre in reply to m87. | March 26, 2013 at 7:52 pm

        That will get you started.

        But…yeah. Look up Art. III, Sec. 2 of the Constitution.

          That doesn’t “get me started” at all. At the very least, you could answer the questions I posed to you in my comment–based on your response, I’m not sure what your answers would be.

          What’s more, neither of the sources you cite supports the conclusion that where a state refuses to defend a law enacted by referendum, no person may challenge that law, which appears to be the position you’ve taken.

          Finally, as a courtesy, please don’t send me on rabbit chases across the internet. State your argument and then, if you’d like, back it up with sources that you believe support it. Why should I be forced to divine what your position is or the arguments in favor of that position by reading what appear to be irrelevant source documents? Article III doesn’t mention standing, ripeness, mootness, political questions, or any other similar judicial doctrines, and so if your argument hinges on one of those, sending me to the Constitution isn’t going to be helpful.

[…] between Justice Scalia and Ted Olson, advocate for ‘gay marriage’ [tip of the fedora to William Jacobson for the link to the transcript […]

Mr. Olsen the God of the O.T. and the N.T. has already ruled on the perversion of “evolutionary cycle” called homosexuality. Recall God vs. Sodom and Gomorrah?

Professor: The continued absence of the “up” or “down” thumbs is sorely missed. This posting today should have plenty of such thumbs being wagged up and / or down, as would many another such posting recently. Good luck on whatever you decide to do, or not to do!

Whatever, remember always: “We the People” are getting to be more and more “not amused” by the ongoing circus that is our government! Still, while Queen Vicky could raise her voice in anger, our voices need to be kept civil else Big Sis will send in her SWATs.

Evolution does not have a cycle. Evolution is a chaotic process.

Progress has a cycle, from functional to dysfunctional, and it is a monotonic process.

Once they dispensed with standards of biological imperatives and behaviors which engender evolutionary fitness, they could only reasonably call for universal rights, irrespective of sexual or platonic relationships. They did not, and instead demonstrate a unique prejudice.

Subotai Bahadur | March 26, 2013 at 3:47 pm

Short form.

There are not enough members of the Supreme Court who believe in Federalism, in traditional values, in leaving people alone, or in the Constitution to avoid forcing gay marriage on at least California and probably the entire country. The route may differ, by refusing standing [not unlikely, because in any case opposing the Left it seems that there automatically is no one with legal standing to file suit], or by direct ruling.

I know that Professor Jacobson is a law professor and has faith in the system. But the legal system and the courts are divorced from settled law, the consent of the governed, and the Constitution. One can expect neither law nor justice from them.

Just as the worst sequalae from the EU seizure of bank accounts in Cyprus involve a loss of faith in the European banking system and the rule of law [depositors who the law supposedly is there to protect get hit, while the stockholders, bondholders, and officials who are supposedly liable under the law get off free]; the consequences of decision [whether it is to take a case or an actual ruling] after decision that is regarded as illegitimate by large portions of the population will have a horrible effect on our future.

Subotai Bahadur

Henry Hawkins | March 26, 2013 at 5:54 pm

Roberts is a wild card now. Having been excoriated from the middle and right for his Obamacare decision, does he follow an apparent leftish lean or does he go with a ‘make up’ call, like referees in sports will do after they’ve blown an earlier call?

After all, it doesn’t seem like simply interpreting the Constitution is on the menu anymore.

We the People of the United States … secure the Blessings of Liberty to ourselves and our Posterity

The government has a mandate to favor procreative unions. The People have standing established by the Constitution to secure the same.

Uncle Samuel | March 26, 2013 at 6:12 pm

While we weren’t looking the cowardly foolish spiritually-bling wussies of the APA Psychology/Psychiatry groups have taken Gender Identity Disorder out of the new DSM-5 and from now on, Trangender is going to be a legitimate sexual ‘orientation’…

Shows what happens when political activism and invented rights trump science, statistics and Scripture and common sense.

Why didn’t the plaintiff’s lawyer argue this:

NO ONE IS DENYING THE RIGHT OF GAY PEOPLE TO MARRY. A GAY MAN AND A GAY WOMAN CERTAINLY HAVE THE RIGHT TO MARRY. They choose NOT to exercise that right based on their own sexual orientations. Choosing NOT to exercise a right is NOT the same as being denied that right.

This argument is based on the traditional definition of marriage, of course, and any other basis is in dispute.

BannedbytheGuardian | March 26, 2013 at 7:43 pm

Iran does not ave this problem. I recall the mockery of the Mahmoud guy at Columbia when he said there were no homos in Iran.

After he returned home , he made good his word. Any that evolve overnite do not live to see another night.

So much for evolution.

theduchessofkitty | March 26, 2013 at 8:28 pm

Meanwhile, the 7-thousand-ton King Kong staring at everyone at the Court is being pathetically ignored: the threat to Freedom of Religious Exercise under the First Amendment.

But who gives a rat’s @$$ about rights for people who disagree, dissent or oppose, anyway? It’s all about being… ahem… in the “in-crowd.”

The standing issue is of critical importance to states that have Initiatives. Since the Initiative is a check and balance against the powers-that-be, to let those powers decide what to defend “should” the case come up before a federal court is to invalidate the entire concept of the Initiative.

Only propositions that the State favors will stand.

California has a rule that in these cases the proponents of the initiative have standing. While this is not binding on the federal courts, due deference to the state of California and its people ought to be at least considered.

Especially since the alternative is far more controversial that mere gay marriage.

[…] » Reaction to Prop 8 oral argument – Le·gal In·sur·rec·tion […]

My concern is that now the courts seem hell bent on presuming to define marriage into something not previously known except perhaps in the decadent courts of Caligula. What’s next, allowing for polygamous marriages, perhaps undoing the restrictions placed on Utah before it was allowed into the Union?

If not polygamous marriages as they used to be known, perhaps marriages may now be between multiple husbands and multiple wives? What about the union of a man and his dog or favorite parrot?
And, if the courts do so allow Prop 8 to remain stricken, could an amendment to the US Constitution be stricken because it does not meet the needs of some otherwise insulated souls?

Our courts are really treading on a very dangerous path, where even good laws must be weighed against what? Certainly not the will of the people, and I’m not talking about racial or discriminatory laws at all.

We always in the past prided ourselves as a nation ruled by laws and not man. That concept is slowly being squeezed out and we’re becoming a nation ruled the whim of judges and that’s not a legal concern at all, it goes far beyond that narrow issue.