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Tuesday, March 26, 2013

Hollingsworth v. Perry: Arguments and Analysis

Above and below:  signs carried by demonstrators in front
of the U. S. Supreme Court building this morning as the justices
listened to oral arguments on Hollingsworth v. Perry.

From SCOTUSblog, an audio recording of this morning's Supreme Court hearing on the Prop 8 case (1 hr., 19 min.).

Or if you prefer, a written transcript here (PDF, 278 kb).  Hint:  you'll get the most out of both by reading and listening to them together.


1. By Tom Goldstein, editor of SCOTUSblog.

2. By Lyle Denniston, SCOTUSblog reporter.

3. By Greg Stohr at bloomberg.com:
The U.S. Supreme Court raised the prospect that it will decline to say whether the Constitution gives gays the right to marry in an argument that revealed a chasm among the justices on one of the country’s most divisive issues. A decision to back out of the case would let gay marriage resume in California, without directly affecting the rest of the country. Justice Anthony Kennedy, potentially the court’s swing vote, twice asked whether the most prudent course for the court would be not to rule. He said the case was taking the court into “uncharted waters.”
4. By Jacob Combs of Equality on Trial:
As always, Justice Kennedy is almost certainly going to be the swing vote: none of the other conservative Justices appeared anywhere close to a ruling that would declare Prop 8 unconstitutional. Kennedy’s questions on the merits were pointed and probed both sides. At one point, Kennedy pointed out that the sociological evidence about families headed by same-sex couples and whether there are any effects on children is new and not conclusive. But in the very same sentence, he mentioned that there is a specific legal injury present in the case suffered by the almost 40,000 children living in California with same-sex parents.

Continued after the jump . . .

5. The New Yorker's full coverage of the same-sex marriage issue and the Supreme Court hearings.

6. Law professor Ari Ezra Waldman, a knowledgeable but sometimes sloppy writer, makes this very pertinent rebuttal to something that Chief Justice Roberts said:
The Chief Justice made the point that bans on gays marrying need not only be seen as antigay discrimination. It is undisputed that marriage as an institution developed without gays; keeping it that way is not necessarily discrimination. Aside from ignoring pre-Christian "unions" in Greece and Rome and focusing only on the development of marriage in a Judeo-Christian tradition, what the Chief Justice misses with that argument is the discriminatory and silencing role of the closet. Countless institutions developed without gay people because gays were shoved underground and forced to hide in order to survive. Plus, that a practice has always existed does not mean it isn't discriminatory.
And on that point and others from around the world, your Head Trucker earnestly advises you all to get a copy of the monumental but highly readable survey of gay history by the late Professor Louis Crompton: Homosexuality and Civilization, which the learned Chief Justice would do well to read, too.

7. Andrew Sullivan, who has been arguing the conservative case for same-sex marriage since long before it was fashionable even among most liberals, gives his reactions to various excerpts from the hearing.

8. Maureen Dowd nails it on the "craven impulse" and self-serving hypocrisy of the conservative justices.

Chart from bloomberg.com

Prop 8 proponents' attorney Charles Cooper speaks after the hearing:

Ted Olson and David Boies for the side of the angels:

Andrew Sullivan quotes conservative journalist David Frum, who formerly opposed marriage equality, but who addressed the crowd in front of the Supreme Court building this morning with these words:
Marriage is a source of great joy. But – and I speak as one who’ll celebrate a 25th anniversary this summer – it’s also a solemn undertaking: an undertaking to care for another person, to nurse that person when ill, to sustain her or him in time of trouble, to raise children together, to provide for those children, to mourn when it comes time to mourn.

No agency of government can ever begin to do for anyone what loving spouses do for each other. The stronger our families are, of every kind of family, the less government we’ll need.

Today your families gather before this house of the law to claim the right to live as others do, without shame and without fear. The mind of a nation is changing. It’s an awesome thing to see – and to be part of. Your words – your actions -and your example have power. And will overcome.

What I Say: This quote from Justice Alito, addressed to Solicitor General Verrilli, makes your Head Trucker think that the Court, collectively, will go no further than it absolutely has to at this time:
The one thing that the parties in this case seem to agree on is that marriage is very important. It's thought to be a fundamental building block of society and its preservation essential for the preservation of society. Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn't a lot of data about its effect. And it may turn out to be a—a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe. But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? I mean we—we are not—we do not have the ability to see the future. On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?
The Supreme Court historically has been very shy to get ahead of public opinion, as Justice Sotomayor observed (but was not necessarily advocating here):
We let issues perk, and so we let racial segregation perk for 50 years from 1898 to 1954. . . . And now we are only talking about, at most, four years [since gays could marry in California].
So unless there's some black-robed evolution and revolution happening in chambers that we don't yet know about - don't get your hopes up for any nationwide changes in the states, or any constitutional right to same-sex marriage. But let's see what happens tomorrow with the DOMA case.

P.S. - Sotomayor was very, very shrewd and magisterial. Kagan raised a very good question about aged and infertile straight couples, which received an inane answer from Attorney Cooper.

But OMG, that Justice Ginsberg, don't you just love her? The way she kept slipping the dagger between Cooper's ribs so sweetly but with deadly aim, and as easily as sticking a pin into a voodoo doll. Cf. her quiet little lavender-and-old-lace slapdown of Cooper's attempt to bring up Baker v. Nelson. The lady rocks!

As always, Rachel sums up wittily today's exchanges between counsel and court:

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