Who Won The Argument?


As we know, it’s foolish to predict a decision based on oral arguments (pdf). So I won’t. But since I’ve been arguing this question most of my adult life, I figured it would make sense to see who I think got the better of the case. Some of the issues are beyond my skill-set: I’m not qualified to answer on the somewhat esoteric issue of standing – except that it is clearly at issue here and may give a deadlocked court a way out.

This exchange was the most clarifying on that matter:

JUSTICE SOTOMAYOR: — Justice Scalia proffered the question of the Attorney General. The Attorney General has no personal interest.


JUSTICE SOTOMAYOR: He has a fiduciary obligation.

But no such obligation exists for the five (now four) individuals claiming to be harmed by the striking down of Proposition 8. Here is how Olson responded to that argument:

TED OLSON: What is missing here, because you’re not an officer of the State of California, you don’t have a fiduciary duty to the State of California, you’re not bound by the ethical standards of an officer of the State of California to represent the State of California, you could have conflicts of interest. And as I said, you’d be — could be incurring enormous legal fees on behalf of the State when the State hasn’t decided to go that route.

But if a state’s elected leadership refuses to intervene to defend a popular initiative, doesn’t that make a mockery of the entire system? Solicitor General Verrilli gave this response:

VERILLI: We do think that with respect to standing, that at this point with the initiative process over, that Petitioners really have what is more in the nature of a generalized grievance and because they’re not an agent of the State of California or don’t have any other official tie to the State that would — would result in any official control of their litigation, that the better conclusion is that there’s not Article III standing here.

I found myself oddly persuaded that there is standing here, simply because if there isn’t, I don’t see how any initiative would matter if the executive branch simply refused to defend it if it were subsequently struck down. It seems an affront to democracy not to defend a popularly successful initiative. But that is obviously not a legal argument – just an intuitive inference from the to-and-fro.

Next up, the core argument of those defending Proposition 8 remains … yes, procreation. Here’s the part of the argument I thought came closest to the nub of it:

JUSTICE BREYER: What precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile couples of different sexes to marry would not? I mean, there are lots of people who get married who can’t have children …

JUSTICE KAGAN: Well, suppose a State said, Mr. Cooper, suppose a State said that, because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?

MR. COOPER: No, Your Honor, it would not be constitutional.

JUSTICE KAGAN: Because that’s the same State interest, I would think, you know. If you are over the age of 55, you don’t help us serve the Government’s interest in regulating procreation through marriage. So why is that different?

MR. COOPER: Your Honor, even with respect to couples over the age of 55, it is very rare that both couples — both parties to the couple are infertile, and the traditional -­ (Laughter.)

JUSTICE KAGAN: No, really, because if the couple — I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage…

I’d say that Cooper was destroyed in that exchange. So he tries a different tack:

MR. COOPER: It’s designed, Your Honor, to make it less likely that either party to that — to that marriage will engage in irresponsible procreative conduct outside of that marriage. Outside of that marriage. That’s the marital — that’s the marital norm.

The procreation argument then becomes an argument that civil marriage should be restricted to heterosexuals because only heterosexuals can commit adultery and thereby create children. So monogamy is more important to them than to homosexuals, and sexual monogamy is the core definition of civil marriage. This argument might have made sense before contraception, but it’s a pretty thin reed thereafter. You can see how the pill changed everything. It made adultery much safer. It made marriage non-procreative, if that’s what the couple wanted. Again, the case collapses.

We then arrive at the question of how including gay couples in civil marriage would harm the institution as a whole:

JUSTICE KAGAN: What harm you see happening and when and how and — what — what harm to the institution of marriage or to opposite-sex couples, how does this cause and effect work?

MR. COOPER: Once again, I — I would reiterate that we don’t believe that’s the correct legal
question before the Court, and that the correct question is whether or not redefining marriage to include same-sex couples would advance the interests of marriage as a -­

JUSTICE KENNEDY: Well, then are — are you conceding the point that there is no harm or denigration to traditional opposite-sex marriage couples? So you’re conceding that….

MR COOPER: No, your Honor, no. I’m not conceding that … Consider the California voter, in 2008, in the ballot booth, with the question before her whether or not this age-old bedrock social institution should be fundamentally redefined, and knowing that there’s no way that she or anyone else could possibly know what the long-term implications of — of profound redefinition of a bedrock social institution would be.

That is reason enough, Your Honor, that would hardly be irrational for that voter to say, I believe that this experiment, which is now only fairly four years old, even in Massachusetts, the oldest State that is conducting it, to say, I think it better for California to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing…

The point I am trying to make, and it is the Respondents’ responsibility to prove, under rational
basis review, not only that — that there clearly will be no harm, but that it’s beyond debate that there will be no harm.

I would simply notice the slipperiness of Cooper’s point. He goes from arguing that allowing gay couples to marry would harm the institution – but because he cannot really find an argument for that, he ups the ante. He doesn’t have to prove a positive; his opponents have to prove a negative “beyond debate.” That’s simply impossible. What is reasonable, it seems to me, is to argue that given the relatively new nature of this institution, some patience may be prudent – but may also be directly harmful. Here the common sense of one Justice sticks out like a new crocus budding in the earth:

JUSTICE KENNEDY: 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?

Maybe Kennedy is more concerned about the status of the children – and their stigmatization by being denied the stability of married parents – than the rights of the adults. It was an interesting digression. Then we arrive at the Scalia view that we shouldn’t be talking about this at all, because the Founders didn’t:

JUSTICE SCALIA: You — you’ve led me right into a question I was going to ask. The California Supreme Court decides what the law is. That’s what we decide, right? We don’t prescribe law for the future. We — we decide what the law is. 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. (Laughter.)

JUSTICE SCALIA: When do you think it became unconstitutional? Has it always been unconstitutional?

MR. OLSON: When the — when the California Supreme Court faced the decision, which it had never faced before, is — does excluding gay and lesbian citizens, who are a class based upon their status as homosexuals — is it — is it constitutional –

JUSTICE SCALIA: Okay. So I want to know how long it has been unconstitutional in those -­

MR. OLSON: I don’t — when — it seems to me, Justice Scalia, that -­

JUSTICE SCALIA: It seems to me you ought to be able to tell me when. Otherwise, I don’t know how to decide the case.

MR. OLSON: I — I submit you’ve never required that before. When you decided that — that individuals — after having decided that separate but equal schools were permissible, a decision by this Court, when you decided that that was unconstitutional, when did that become unconstitutional?

JUSTICE SCALIA: 50 years ago, it was okay?

MR. OLSON: I — I can’t answer that question, and I don’t think this Court has ever phrased the question in that way.

JUSTICE SCALIA: I can’t either. That’s the problem. That’s exactly the problem.

But the answer is surely that these forms of discrimination became unconstitutional once the collective consciousness of Americans recognized that the discrimination was unjust – and sometimes before. When Loving vs Virginia was decided, there was far more popular support for maintaining anti-miscegenation laws than there is now from keeping gays out of legal marriage. And once you’ve opened up equal protection beyond race, your only reliable guide is public consciousness and consensus. This is anathema to Scalia. But a constitution that cannot adapt to the constantly-changing society it regulates is, in the words of Scalia himself, “dead, dead, dead.” There was a more interesting exchange with Verrilli, representing Obama:

JUSTICE SCALIA: So your — your position is only if a State allows civil unions does it become unconstitutional to forbid same-sex marriage, right? …

GENERAL VERRILLI: Our position is — I would just take out a red pen and take the word “only” out of that sentence. When that is true, then the Equal Protection Clause forbids the exclusion of same-sex marriage, and it’s an open question otherwise.

For what it’s worth, I thought that the Obama argument that providing all the substantive benefits of civil marriage, while withholding the name, was less constitutional than banning all of the substance entirely, fared poorly in the exchanges. It seemed “a very odd rationale” to Kennedy and counter-intuitive to Sotomayor. But Roberts got to the heart of it:

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 8 are saying here. You’re -­ all you’re interested in is the label and you insist on changing the definition of the label.

MR. OLSON: It is like you were to say you can vote, you can travel, but you may not be a citizen. There are certain labels in this country that are very, very critical. You could have said in the Loving case, what — you can’t get married, but you can have an interracial union. Everyone would know that that was wrong, that the — marriage has a status, recognition, support, and you — if you read the test, you know … this Court is the one that has said over and over again that marriage means something to the individual: The privacy, intimacy, and that it is a matter of status and recognition …

I think Olson wins that one. I don’t get Roberts’ “friend” analogy. No one is saying that those who oppose married gay couples must be forced to accept that, or to believe that their marriage is now different than it once was, no more than a devout Catholic is required in his or her life to recognize the morality of a second marriage, following a civil divorce. What it’s about is the state‘s legal description of the arrangements of couples under its jurisdiction, and carving out a separate but equal category for people who qualify for the right in every respect except their sexual orientation. And the history of the Court on the importance of that term “marriage” is unequivocal and deep and strong.

Lastly, we get the inevitable polygamy argument. And Olson nails it:

TED OLSON: [I]f a State prohibits polygamy, it’s prohibiting conduct. If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status. It’s selecting them as a class, as you described in the Romer case and as you described in the Lawrence case and in other cases, you’re picking out a group of individuals to deny them the freedom that you’ve said is fundamental, important and vital in this society, and it has status and stature, as you pointed out in the VMI case.

All in all, a very interesting exchange of some of the core issues. My sense is that SCOTUS will try to find a way to rule in as narrow a way as possible – but I have no idea what form that could take. Which suits me just fine. Either Prop 8 falls and its implications do not extend beyond that state, or SCOTUS narrowly upholds Prop 8, and Californian voters get to vote again soon. For my part, I’d like to win this in the most enduringly legitimate way – in the democratic process, where we are winning more quickly than some of us ever dreamed of.

(Photo: Same-sex marriage supporters and same-sex marriage opponents argue their points in front of the US Supreme Court on March 26, 2013 in Washington, DC, as the Court takes up the issue of gay marriage. By Saul Loeb/Getty.)