Today's
oral argument before the Supreme Court on the constitutionality of California's Prop 8 yielded no clear signs as to where the Court will go. Members of the Court clearly seemed troubled by two aspects of Prop 8 proponents' case—whether they had standing to defend the provision at all, and whether it could be justified in light of California's granting same-sex couples full equality when it comes to adoption and other parental rights. Justice Kennedy's reference to the need to listen to the voices of the tens of thousands of children of California's same-sex couples makes me believe that he's probably willing to overturn Prop 8 itself on the merits, but is deeply hesitant to reaching a 50-state solution.
Still, it would not surprise me at all to find the Court produce a six-justice majority finding no standing for Prop 8's supporters to defend the statute, leaving the district court's ruling striking it down in place.
My traditional word of caution: Justices ask questions for all sorts of reasons—to convince their fellow justices of a particular point, to test the limits of propositions, innate contrarianism, boredom, etc. And recognize that most of the argument took place on the briefs, and not in the hour-plus during which the parties appeared today.
That said ...
Standing. The chief justice asked each of the litigants to devote the first portion of his argument as to whether the Prop 8 proponents had the legal right to step in the shoes of the State of California to defend the provision given the governor's and attorney general's refusal to do so. You may recall that in November 2011, the California Supreme Court unanimously held that such standing existed, as holding otherwise would allow government officials effectively to veto citizen initiatives—but the U.S. supremes (who aren't bound by that decision) were more skeptical:
CHIEF JUSTICE ROBERTS: ....a State can't authorize anyone to proceed in Federal court, because that would leave the definition under Article III of the Federal Constitution as to who can bring -- who has standing to bring claims up to each State. And I don't think we've ever allowed anything like that.
JUSTICE KENNEDY: But you're -- you're doing so in a -- in a case where the opinion is very narrow. Basically that once the State goes halfway, it has to go all the way or 70 percent of the way, and you're doing so in a case where there's a substantial question on -on standing. I just wonder if -- if the case was properly granted.
But, see, The Many Other Hands of Justice Kennedy:
JUSTICE KENNEDY: But this is not whoever it wants. These are five proponents of -- of the measure, and if we were to accept your argument, it would give the State a one-way ratchet. The State could go in and make a defense, maybe a half-hearted defense of the statute, and -- and then when the statute is held invalid, simply -- simply leave. On the other hand, if -- if the State loses, the State can appeal.
So this is a one-way ratchet as it favors the State, and allows governors and other constitutional officers in different States to thwart the initiative process.
The liberal justices generally seemed more skeptical of the standing claims. Justice Scalia thinks it's too late to address now ("It's too late for that, too late for that now, isn't it? I mean, we granted cert. I mean, that's essentially asking, you know, why did we grant cert. We should let it percolate for another—you know, we—we have crossed that river, I think."), and Justice Alito clearly has no issue with standing ("The whole point of the initiative process was to allow the people to circumvent public officials about whom they were suspicious").
Merits: Went about as you'd suggest. Conservatives saying, "it's all too new to force the states to do anything"; liberals confident that there is no rational basis to Prop 8 in California given that the state otherwise treats same-sex parents equally, and Justice Kennedy debating himself:
JUSTICE KENNEDY: I -- I think there's -there's substantial -- that there's substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more.
On the other hand, there is an immediate legal injury or legal -- what could be a legal injury, and that's the voice of these children. There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?
On the other hand:
JUSTICE KENNEDY: The problem -- the problem with the case is that you're really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that metaphor, there's a wonderful destination, it is a cliff. Whatever that was.
And in his middle hand:
JUSTICE KENNEDY: Do you believe this can be treated as a gender-based classification?
MR. COOPER: Your Honor, I -
JUSTICE KENNEDY: It's a difficult question that I've been trying to wrestle with it.
There will be another case, in the future (including tomorrow), which more squarely presents the question of whether marriage equality is constitutionally required in all 50 states. Today's case is narrower. It's about whether you can take away the name "marriage," and nothing else, from California's same-sex couples:
CHIEF JUSTICE ROBERTS: So it's just about -- it's just about the label in this case.
MR. OLSON: The label is --
CHIEF JUSTICE ROBERTS: Same-sex couples have every other right, it's just about the label.
MR. OLSON: The label "marriage" means something. Even our opponents --
CHIEF JUSTICE ROBERTS: Sure. If you tell -- if you tell a child that somebody has to be their friend, I suppose you can force the child to say, this is my friend, but it changes the definition of what it means to be a friend. And that's it seems to me what the -- what supporters of Proposition are saying here. You're -- all you're interested in is the label and you insist on changing the definition of the label.
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