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Posted by on Mar 26, 2013 in Featured, Law, Politics | 22 comments

Proposition 8 Oral Arguments

Christopher Weyant, The Hill

Christopher Weyant, The Hill

As everyone probably knows the US Supreme Court heard oral arguments today in the case of Hollingsworth v. Perry, more commonly know as the Proposition 8 case. I was able to take some time this afternoon to listen to the oral arguments and review the transcripts to try and give myself an idea as to how the court might rule.

A couple of caveats. First, the ruling won’t come down until June so it is likely that I will rethink and repost on the topic between now and then, but I wanted to get some thoughts out today. Second, I’ve concluded that trying to predict this court is like picking a line in the grocery store, you might have plenty of good reasons for picking the line with two people in it but that won’t stop the person in front of you from needing 4 price checks and a manager approval for her out of state check.

The arguments today basically covered two issues: standing and the merits.

The standing issue is a legal way of saying that for a person to become involved in a case they need to have some stake in that case. For example if your neighbor gets sued then only he can defend himself, you can’t step in even if you feel like you have a stake in his situation. The logic behind this is that if they didn’t place some restrictions on who can become involved in a case things would just be too chaotic. When it comes to federal courts the restrictions are more serious, as you might imagine.

In the case of Hollingsworth, the controversy/debate stems from the fact that the state of California (technically the defendant in the case) did not choose to defend it. Now even though I am an opponent of Proposition 8 I think it was wrong for the state officials not to make an effort to defend the law, but that ship has sailed.

When the state officials chose not to defend the lawsuit the people who originally sponsored the ballot initiative for Proposition 8 moved to defend the law and some question whether they have the right to do so.

In fact there was a case in Arizona involving an English only law where the state chose not to defend the case and the supporters of the ballot proposal stepped in to do so. The US Supreme Court ruled that they did not have the standing to do so and dismissed the case (which had the effect of striking the law).

Certainly this case seems to be similar so why isn’t it clear that the supporters of Proposition 8 don’t have the right to defend it ?

Well when the Supreme Court issued the ruling in the Arizona case one of the points they made was that they were not aware of any Arizona law which allowed the supporters of an initiative to step in to defend it. While there is no California law that says supporters can there have been rulings by the California courts that say they do.

The basic logic is that since the initiative process is designed, in part, to let the people act when government officials won’t it would make no sense to only allow those same government officials to let the law die by not defending it. The California Supreme Court was asked by the lower federal court (the 9th Circuit Court Of Appeals) to issue an advisory opinion on whether or not the supporters of the law had standing and they ruled that they did.

So there is something of a split on the issue of standing.

Based strictly on the comments from the justices today it would seem that they lean strongly to the first view, that there is no standing for the supporters to defend Proposition 8. If they went with this logic then the original ruling would remain in effect, Proposition 8 would be dead but there would be no Supreme Court ruling on the broader issue of whether same sex marriage is a fundamental right.

I have long suspected that this is the direction they would take and if they did so the ruling could be close to unanimous on the subject.

However reading between the lines I think some of the justices want to rule on the merits. After all they could have simply refused to hear the case if they didn’t want to rule on the subject.

I still think striking on lack of standing is more likely but I’d say there is a 1 in 3 chance they hold there was standing and rule on the law itself.

Assuming they do rule on the law itself then there are two directions they can take. The first would be to restrict the ruling to California itself while the other would be to make a broader ruling that would have, if not national implications certainly much broader than California.

Based on the comments from the justices today I do not think they are going to take the bolder approach. Justice Kennedy is the key swing vote o the court and he seemed very reluctant to make such a broad ruling at this point.

On the other hand I think Kennedy is also inclined to find Proposition 8 invalid.

So how will they balance such a conflict ?

Well the entire case so far has been very California centric. The original ruling by the California Supreme Court which struck down the state law defining marriage as between a man and woman only was based on a section of the California Constitution which defined marriage as a fundamental right.

The federal court ruling which found Proposition 8 a violation of equal protection was based upon the idea that once same sex marriage was a fundamental right *in California* then to take it away required very strong reasons to avoid an equal protection violation and since no such reasons were found the law was invalid.

So the court could issue a decision which upholds the ruling striking Proposition 8 but restrict it to California only since the basis for striking the law was based entirely in California. A person in Texas wouldn’t be able to assert any rights under the California Constitution nor could they say they had something taken away by Prop 8.

This I think is the most likely ruling if they find on the merits and I think it would be 6-3 (Kennedy and Roberts joining the 4 court liberals).

As I said this is just a preliminary review. Over the coming weeks I plan to read more deeply into the transcript of the oral arguments and review case law to offer some more updated thoughts. But for now this is where I think things are headed.

Cross posted from my blog (please check it out): The Layman’s Point of View

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  • The big question, as I see it, is whether this will be a Dred Scott, a Brown v Board of Ed, or the coward’s way out. I’m leaning to the latter.

    It is still interesting to see that this case may result in a ruling on California’s unique referendum process, but the biggest civil rights issue of our time will probably be back-burnered until more courageous justices sit on the highest court in the land.

  • PATRICK EDABURN, Assistant Editor

    To be fair Barky the way this case came up through the federal courts made it tough for this to be a sweeping Brown type ruling.

  • brcarthey

    Even if the SCOTUS does only strike down Prop 8, how can they necessarily restrict it to just CA? The gist of this law says that “only marriage between a man and a woman is valid or recognized in California.” That key would of “valid” would seem to me that if they strike this law down, then it would necessarily have to expand to all states.

    Everyone is citing the Loving v. Virginia (1968)as the basis for allowing same-sex couples to marry. It’s that very ruling that has allowed the marriage to my wife be recognized in all 50 states. However, we didn’t “interracially marry,” like there was some kind of weird version of our wedding that two people of similar races wouldn’t be able to recognize. Our ceremony was a marriage between two people of different races that just happened to include a couple of extra . It’s the same difference for gay and lesbian couples. they’re not “gay marrying,” it’s simply marrying of two people of the same gender. Just like my wife and I had no choice in the color of skin we were born into, gays and lesbians do not have a choice into the sexuality they are born.

    In reading the 9th Circuits decision again (Perry v. Brown), the majority opinion stated that they were considering the constitutional permits, nothing more, of whether the whole basis for Prop 8 was enacted for the sole purpose of denying gay couples to marry regardless of the arguments presented in support of it. As one except states:

    Because under California statutory law, same-sex couples had all the rights of opposite-sex coules, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right–the right to obtain and use the designation of ‘marriage’ to describe their relationships. Nothing more, nothing less.

    It seems to me that the only way that the SCOTUS could restrict it to just CA is to punt the case by dismissing it and letting the lower court’s ruling stand.

    If the phrase contained within our founding document, a certain Declaration of Independence, is to be true, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness,” then no one should be denied the right to marry whichever person they want regardless of gender. Otherwise, we will need to either change the definition of “equal” or add an asterisk after “Happiness.”

  • dduck

    “unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness,โ€
    Did that include the right to vote for women and non-land owning male residents at the time of the writing?

  • yoopermoose

    I’m not a lawyer, but I think this would more likely fall under the 14th amendment equal protection clause.

  • brcarthey

    @yoopermoose, the 9th circuit used the 14th amendment as a big part of the rationale for their decision.

    @dduck, that’s interesting that you mention that because my wife and I discuss that quite a bit. We’re both perplexed at how both Washington and Jefferson have known letters/writings that state their loathing and disappointment with regards to the institution of slavery, yet wouldn’t do anything to change it because they also felt it was a necessary evil.

    With regards to women, specifically white women, after the Civil War (aka the War of Northern Aggression ;)), they were horrified that black men, former slaves, were getting the right to vote before they were. Thus, you had the suffrage movement point out that the 14th Amendment should’ve covered them, too. As for the non-land owning piece, that’s something I don’t think I’ll ever understand just as I have never understood our former use (as well as other countries) of “debtors prisons.” How is locking someone up as punishment going to get them repay any money owed? They serve their time and leave, but you’re still out the money they owed you. Go figure.

  • dduck

    The fear of prison made many “find” the money to pay their debt as the fear of the IRS “helps” us pay our taxes. ๐Ÿ™‚

  • brcarthey

    Just one more thought about this legal argument summed up very well by Rev. Dr. Phil Snider of Springfield, MO.

  • yoopermoose

    We still have debtors prison. People who cannot or refuse to pay child support are regularly jailed. I also seem to remeber reading an aticle that debt holders in certain states are using the court system to jail debtors, not for the debt itself, but for failure to show at scheduled hearings.

  • brcarthey

    If one cannot afford child support, they aren’t thrown in jail. They typically have a portion of their wages garnished or the support adjusted to what they can afford, but only after proving they truly are in bad financial standing. In very extenuating circumstances, they will get the IRS involved to start holding liens against the father’s property. As for those refusing, they are only thrown in jail if they have the financial means, but have their money sequestered where the family courts can’t get access to it. Even then, they typically only see the inside of a cell if they’ve skipped out on support for years and/or considered to be a flight risk. Otherwise, the family court system understands that an imprisoned father does not help their child financially.

    However, I’ve read about how credit card companies and mortgage holders are trying to use the courts for that very purpose, some even going so far as to influence state legislatures to make “debtors prisons” official.

  • roro80

    brcarthey, I’m right there with you on all the merits, absolutely. But I do want to remind you that they’re treating this Prop 8 case in conjunction with the DOMA case, which they are hearing today. That’s where you’re going to get all your equal protection stuff. I can see that this case will likely defer back to the ruling of the California courts, which would immediately make a state of 10% of the population be allowed marriage equality. The real kicker will be if they find DOMA unconsitutional. Then, even in states where they do now allow LGBT marriages to be performed, both those individual states and (crucially!) the federal government will be forced to recognize and treat as equal any marriages performed in the states where it is legal. This will be the beginning of the end, I think, for marriage discrimination for LGBT folks, as states with lots of anti-gay sentiment will still have to, for example, house LGBT couples in the military who are married, provide the same legal protections with regard to healthcare and state benefits, and (again, crucially) provide some way for these couples to get legally divorced. Despite their insistence upon not providing legal marriages to gay couples, they will be forced to deal legally with the existence of gay marriage, and therefore will have to build up the infrastructure to do so. And if a couple can get divorced, it becomes pretty silly that they can’t get married.

    I find it deliciously ironic that in some places, I predict divorce as being crucial to paving the way for marriage.

  • roro80

    More predictions: if this goes down as I think it could (prop 8 overturned and DOMA declared unconstitutional), I predict a San Francisco economic boom based on LGBT destination weddings. I predict we will take advantage of that by petitioning for a city hall outpost in the Castro to provide marriage licenses and spur-of-the-moment weddings, Vegas style. I predict weddings conducted by Elvis (Liberace maybe?) and hirable bridesmaids in drag. I predict my friends who work in catering and flowers and event planning having a very good year.

  • brcarthey

    roro80, how can you not have weddings performed by “cher” or “judy garland”? Come you know “friends of Dorothy” would love that! ๐Ÿ˜‰

    You have to wonder if DOMA is struck down, how long it will be before someone brings a civil against any of the states where they have limited the legal definition of marriage to between “one man and one woman.” How that has been able to get past the equal protection clause is perplexing to me.

  • SteveK

    All this talk about weddings performed by Elvis or Liberace or Cher, brought to mind the three year old “Prop 8 – The Musical”

    AKA – Prop 8 Oral Arguments set to music.

  • roro80

    brcarthey, I swear I almost added to my prediction: I predict a truly obscene number of first dances to “Somewhere Over the Rainbow”, IZ’s ukulale version. Totally with you, dude. (That song was played at every single gay wedding I went to in the 6 months marriage was legal in California.


  • zephyr

    Brc, you had me going for awhile with that clip, pretty effective argument.

  • Rambie

    What I don’t understand, is why can’t there be another Proposition in CA to strike down Prop8?

    I predict –hope– they’ll kick Prop8 back to CA and strike down DOMA. It won’t really change anything for me and my partner since the state we live in doesn’t allow us to marry, but it’ll be a step in the right direction.

  • SteveK

    Prop 8 has already been struck down by the California Supreme Court and lower Federal Courts, if the SCOTUS kicks it back to California it’s dead.

    It’s the pro-Prop 8 forces (California Government NOT included) that brought this complaint to the Supreme Court.

  • roro80

    Rambie — We could, and in fact I’d be downright shocked if we didn’t (if it’s not struck down here), but it’s extremely expensive to fight the Mormons and the Catholics. I believe that the Prop 8 fight was the most expensive referendum in US history (I’d have to look it up, but that’s what I recall.) Another possbile consideration is that getting California’s 10% of the US population living in a state where civil rights are recognized is great. Getting the Supreme Court to knock it down as unconsitutional could be a first step toward getting equality for the vast majority of the population of the US that wouldn’t be at all helped by a new law in California.

  • SteveK

    Again… Prop 8 has already been ‘struck down’.

    United States District Court Judge Vaughn Walker overturned Proposition 8 on August 4, 2010 in the case Perry v. Schwarzenegger, ruling that it violated both the Due Process and Equal Protection clauses of the United States Constitution.
    On February 7, 2012, in a 2โ€“1 decision, a Ninth Circuit Court of Appeals panel affirmed Walker’s decision declaring the Proposition 8 ban on same-sex marriage to be unconstitutional.

    It’s the proponents that have brought this issue to the Supreme court wanting the court to reverse the two previous decisions that ruled Prop 8 unconstitutional.

    source: Wikipedia: California Proposition 8

  • Good point, Steve.

  • KP

    @Rambie “What I donโ€™t understand, is why canโ€™t there be another Proposition in CA to strike down Prop8?”

    It’s not impossible; it just takes a group of very focused special interest to get the money while organizing the political will. The props that pass here in Cali don’t always reflect popular opinion. They are written in ways that confuse. Then, big money is a player. Lastly, Sacramento is the closet thing I have seen to Chicago politics (not a compliment).

    Here’s a rhetorical question: why doesn’t Cali pass a Proposition to rewrite it’s rediculous state constitution which has doomed us to bankruptcy? Answer: politicians in Sacramento are living large!

    This state is as corrupt as they come.

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