To start with, I Am Not A Lawyer. I studied some Constitutional law as an undergraduate mumblety-mumble years ago, and I occasionally read Supreme Court cases for fun. But I Am Not A Lawyer. So in the imprecise field of divining the Supreme Court's intentions, I'm pretty low on the ladder.
But having read through the transcript of today's arguments in Hollingsworth vs. Perry, I found some things that seem noteworthy, and that may contravene the current conventional wisdom. Come with me over the begaveled croissant...
1) As TomP noted in his diary (which you should definitely read), the issue of standing played a prominent role. That is, do the proponents of Prop. 8 even have the legal authority to bring this lawsuit? If the Court says yes, that could itself create a new precedent: In most cases it's only the State -- through the State's Attorney General -- that has standing to defend the constitutionality of the State's laws. If the Court grants standing to the NOMsters, it runs the risk of opening that field up to any ordinary Joe who wants to defend a state law. (And this is a risk; it could further bog down an already bogged-down court system.) The Court is understandably reluctant to let that happen; TomP, citing scotusblog, believes that the Court will just say no to standing. This means that Prop8 is thrown out, but without saying anything definitive about the constitutionality of laws against same-sex marriage.
I see a strong chance that the Court will grant standing, in a narrow ruling that grants standing to a relatively small class of people. From the transcript (Charles Cooper is the lead attorney for the NOMsters) :
MR. COOPER: [T]he Constitution of the State of
California and its election code provide, according to
the unanimous interpretation of the California Supreme
Court, that the official proponents [of the ballot measure], in addition to the
other official responsibilities and authorities that
they have in the initiative process, that those official
proponents also have the authority and the
responsibility to defend the validity of that
initiative --
In other words: If you manage to get an initiative on the California's ballot, and the initiative passes, and California's AG would rather walk over hot glass then defend your law in court, then under a specific California law
you have standing to defend the law's constitutionality. Cooper cites the California Supreme Court's argument here:
The Court said it is essential to the
[integrity] of the initiative process in that
State... to take issues out of the hands [of public
officials who refuse to defend them]. And if public officials
could effectively veto an initiative by refusing to appeal it,
then the initiative process would be invalidated.
Hence the Court could uphold
this specific California law -- assuming that it's for real -- without creating a huge class of potential litigants.
2) As I noted in comments on TomP's diary, Cooper really painted himself into a corner when trying to define procreation as the central purpose of marriage:
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.)
Cooper seems to have shot himself in the foot here, even if we accept the dubious claim that it's rare for
both parties to be infertile (even past age 55!) Because if
one party in the couple is fertile, then for that couple to procreate they would need to bring in eggs or sperm from a third party. Of course, that implies procreation outside of the context of a traditional marriage, which is just what Cooper's team says is bad, bad, bad. (Ted Olson, representing the good guys, didn't appear to pick up on this, but I'd be surprised if neither Kagan nor Satomayor does.)
3) Scalia is an ass. I know you knew that already. But, my Universe, this man is an ass!
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?
Olson's response is spot-on:
When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?
(An even better response might have been something like:
It's not when did it become unconstitutional; it's a question of when the Court understood that it was unconstitutional. But that might have been a bit impolitic.)
Scalia doesn't let up, though. He pursues this line of questioning for four freaking pages of transcript, going so far as to tell us:
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.
And again, Olson comes back strong. (
What I said above, about an impolitic response? I'm not sure if many lawyers could get away with this one. I'm not 100% certain that he did get away with it. But I like it.)
MR. OLSON: I -- I submit you've never
required that before. When [this Court first] decided that... separate but
equal schools were permissible, [then] when you decided that that was unconstitutional, when did that become unconstitutional?
4) The justices gave a lot of attention to an issue that doesn't seem very difficult to me, and I'm wondering what I'm missing here.
Basically, one of the major arguments against Prop8 relies on the fact that California already had -- and still has -- a strong domestic partnership law, which has not been struck down. As Olson's team rightfully points out, this invalidates the argument that the State has a particular interest in supporting marriage as being solely between a woman and a man, because the major legal structures that marriage would provide to same-sex couples are already provided to them through domestic partnership.
And here it gets tricky: The justices (on both sides) seem hung up on the idea that if they invalidate Prop8 because California already has domestic partnership, then they're essentially establishing an all-or-nothing proposition: If they rule against Prop8 on these grounds, it would effectively mean that all states which have domestic partnership laws must extend those laws to marriage, while states that offer no arrangements for same-sex couples would not be affected by this ruling.
And I don't get this. Accepting Olson's argument here doesn't mean that domestic partnership equals marriage. Prop8 is an affirmative action against same-sex marriage. It's not like the state has a vacuum where the marriage law should be; they've got a black hole there instead. The Court could rule against Prop8, and other such affirmative bans on same-sex marriage, without requiring other states to implement it. In other words, we're only asking the Court to shove that black hole down its singularity's throat. We're not asking it to create anything new to replace it. (Not yet, anyway.)
For what it's worth: Obama's Solicitor General, Donald Verrilli, was present in an amicus role. He argued that the Court can reasonably rule on California without needing to address states that have no domestic partnership laws. But he didn't seem to argue that the court's ruling need affect only affirmative bans on same-sex marriage.
5) My Magic 8-Ball sees the Court upholding the lower court's ruling, thus keeping Prop8 overturned. It's far from certain, of course, but I think Olson and his team showed that a class of people are injured by Prop8, while there's no state interest that is compelling enough to justify that injury. The ruling may be one that can be used to overturn other states' laws against same-sex marriage, but unlike the Massachusetts, Iowa, and California courts (among others), it won't affirmatively establish a right to same-sex marriage in all states. (Yet.)
6) Oh my Universe, Scalia is an ass! (But you knew that.)
UPDATE: modemocrat makes some additional points that I wish I'd said here, in The missing feminist perspective from "traditional marriage" debate. Please read & rec!