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Let’s hope that the U.S. Supreme Court gets it right on DOMA and Prop 8

UPDATE: Audio and transcript are up at the SCOTUS  web site.

There are several ways this can go, but only one way to morally and legally handle the institutionalized discrimination that exists in this country today when it comes to the freedom to marry. Today the Prop 8 arguments were presented to the U.S. Supreme Court.

Lots of blogs and news outlets are covering the proceedings, but here are a few links. First, Chris Geidner at Buzzfeed:

More than the question of Proposition 8’s constitutionality, however, several justices — including Kennedy, often considered a key swing vote on the court — questioned the lawyers at length about whether the initiative’s proponents even had the legal right to bring the appeal, called standing.

Beyond the standing question, which drew skeptical questions from almost all of the justices, Kennedy at a later point went further and asked Olson whether the court was even correct to have accepted the case for review in the first place. When Justice Sonia Sotomayor raised the question to Cooper, Scalia shot back that the court had already accepted the case: “We crossed that river.”

When Solicitor General Donald Verrilli Jr., the Obama administration’s top lawyer before the Supreme Court, took to the podium, he faced a skeptical bench of justices. The administration’s argument, that a state like California that extends almost all the benefits of marriage to same-sex couples has no constitutional reasoning for excluding them from marriage, prompted probing questions from Ginsburg, who characterized the argument as “a state that has made considerable progress must go all the way,” while a state that has done nothing might receive more constitutional protection.”

SCOTUSblog on Prop 8:

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.

Second, the Court may dismiss the case because of an inability to reach a majority. Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him. Others on the left may agree. That ruling would leave in place the Ninth Circuit’s decision.

American Foundation for Equal Rights, which represent oral arguments against Prop 8  (Hollingsworth v. Perry): 

Theodore B. Olson of Gibson, Dunn & Crutcher LLP presented argument on behalf of the Plaintiffs challenging Proposition 8.  Solicitor General Donald B. Verrilli, Jr. presented argument on behalf of the United States as amicus curiae in support of the Plaintiffs.  Charles J. Cooper of Cooper & Kirk, PLLC presented argument on behalf of the Proponents of Proposition 8.

“This case is about marriage and equality.  The Plaintiffs we represent are two loving couples who, like millions of other gay and lesbian Americans, are being denied the fundamental right to marry and the right to be treated with equal dignity and respect under the law,” said Plaintiffs’ lead co-counsel Theodore B. Olson, who served as Solicitor General from 2001 to 2004.  “This discrimination cannot be squared with the principle of equality and the unalienable right to liberty and the pursuit of happiness that is the bedrock promise of our Constitution.  The day it is ended, we will be closer to fulfilling the dream of all Americans.”

“Fourteen times the Supreme Court has stated that the freedom to marry is one of the most fundamental rights—if not the most fundamental right—of all Americans,” said Plaintiffs’ lead co-counsel David Boies of Boies, Schiller & Flexner LLP.  “The denial of the right to marry causes grave harm to gay and lesbian Americans and the children they are raising.  It serves no legitimate state interest.  As full and equal citizens under our Constitution, gay and lesbian Americans cannot be denied the basic, fundamental freedom to marry.”

Constitutional Accountability Center Vice President Judith E. Schaeffer:
“When pressed by the justices, the lawyer defending Proposition 8 could not come up with any legitimate reason for excluding gay and lesbian couples from the freedom to marry. The Justices, while uncomfortable with Proposition 8, seemed hesitant to rule on the merits, but as Justice Kennedy noted, there was concern about branding the families of nearly 40,000 children in California as second-class.
“One important question Justice Scalia asked former Bush Solicitor General Theodore Olson, who defended marriage equality, was when it became unconstitutional to deny gay and lesbian couples the right to marry. The answer is 1868, when the American people added the Fourteenth Amendment’s universal guarantee of equality to the Constitution.”
NOTE: Kate and I married in Vancouver, B.C. Canada in July 2004.
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Pam Spaulding

Pam Spaulding