I just walked out of oral arguments at the U.S. Supreme Court and waded through a huge crowd of supporters shouting, "Equal rights under the law!" It was a whirlwind hearing, and all three lawyers faced tough questions from the justices. Here's my initial take on the justices' questions and what they might mean.
The biggest takeaway is that there was a serious focus on issues of standing and jurisdiction during today's oral arguments. Charles Cooper, representing the proponents of California's Prop 8, got in a few words before Chief Justice John Roberts steered him toward addressing whether the proponents have standing to defend Prop 8. The chief justice did the same to Prop 8 opponents Ted Olson (who said, gamely, "I was trying to avoid that") and Solicitor General Donald Verrilli Jr.
There was substantial concern among the justices regarding how to avoid a situation where an initiative such as Prop 8 could be nullified by an administration that does not agree with the law. Cooper seemed to open the door to a very new, broad right to standing: When asked by Justice Elena Kagan if a state could assign any citizen to defend its laws, Cooper responded, "It very well might."
Olson repeatedly assured the court that a state could appoint an "officer" that would defend the law, specifically pointing to the fact that that individual would understand and be obliged to keep in mind the financial burden faced by the state. Justice Antonin Scalia was skeptical, asking whether that person would be appointed by the same administration that chose not to defend the law, but Olson reassured him that many administrations have done so in the past, even for laws that they did not agree with.
Olson, picking up on a line of thought that Chief Justice Roberts had presented to Cooper, argued that adopting the Prop 8 proponents' argument on standing would essentially allow states to dictate Article III standing; that is, they could say that any individual could represent the interests of the state even without a personalized injury. This would basically negate the whole point of Article III standing, which establishes a certain set of norms and guidelines under which cases can be brought to the federal courts.
Several times Justice Sonia Sotomayor stepped in and said something to the effect of, "Here's what all these questions are getting at, and here's the fundamental issue you need to address." On the standing question Sotomayor asked Olson point-blank who ensures that a law is defended if a state's executive decides that it won't do so. Olson stuck to his guns, saying that the proponents of a ballot measure cannot possibly fully understand a state's interests in a specific law, and that there would instead need to be some kind of appointment process where an administration that had chosen not to defend a law would delegate that task to a specific governmental individual.
During his time for argument, Solicitor General Verrilli underscored the fact that the United States had not addressed the issue of standing in its briefs and said that the federal government had "no formal position" on the issue. Nonetheless, he said that the government leans towards the plaintiffs' arguments and believes that the proponents of Prop 8 lack the particularized injury to qualify for Article III standing.
Merits: The Arguments for Prop 8
Cooper had two central points. In the first he put significant emphasis on the fact that there is an "earnest debate" over marriage equality happening across the country. Early on, Cooper asked rhetorically whether the Supreme Court should stop that debate, saying that it could only do so it if found that Prop 8 was entirely based on animus.
Cooper's second point was his usual "responsible procreation" argument, of course. Same-sex couples, Cooper contends, are not "similarly situated" (a central component to equal protection consideration) to opposite-sex couples, because only opposite-sex couples can procreate naturally. Justice Kagan pointed out that Cooper had made an argument for not including same-sex couples in the institution of marriage (because marriages between same-sex couples do not explicitly further the state's interest in responsible procreation) but asked whether he could justify a law that excludes them from the institution.
Kagan told Cooper that she couldn't find in his legal briefs any specific harms that would result from allowing same-sex couples to marry. Cooper said that this notion of specific harms is not the central legal issue in the case, circling back to his earlier argument that restricting marriage to opposite-sex couples is justifiable because it furthers a state's interest in responsible procreation.
Justice Scalia addressed gay adoption, saying that allowing marriage equality would require allowing same-sex couples to adopt. Because some states don't allow that, he said, could Cooper address any harms arising from gay adoption? If so, he implied, Prop 8 could be rationally defended. Cooper demurred. Justice Stephen Breyer then jumped in and zeroed in on California, asking how allowing marriage for gay couples in a state with same-sex adoption would affect straight couples in any way that allowing sterile couples to marry would. Justice Kagan picked up on this, asking whether a restriction on marriage based on age -- say, a prohibition on marriage for couples over 55 -- would be OK. Cooper said that marriage would still channel such couples' sexual activity in such a way that would encourage fidelity and responsible procreation. In response to this, Justice Ruth Bader Ginsberg pointed out that the Supreme Court has recognized a right to marry even for prison inmates with no possibility of procreating.
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 the case involves a specific legal injury suffered by the almost 40,000 California children living with same-sex parents.
Merits: The Arguments Against Prop 8
Addressing the merits of the case and arguing against Prop 8's constitutionality, Olson repeatedly told the court that marriage is a personal individual liberty and a fundamental right, and that procreation is not a part of that right. Prop 8, he said, excludes gay and lesbian Californians from that right.
Chief Justice Roberts jumped in early, throwing cold water on the idea that Prop 8 "excludes" gays from marriage, saying instead that marriage developed historically for reasons that gay unions do not forward (i.e., procreation).
Roberts and Olson got into a bit of a weedy debate about whether the Prop 8 case would be different if the law had been passed before the California Supreme Court extended marriage rights to same-sex couples, with Roberts saying that if the timing had been different, Olson wouldn't be arguing that Prop 8 excluded gays and lesbians from marriage. Olson reiterated his point that marriage is a fundamental right and said that while the argument in that case would be subtly different, it would still rely on the central question of whether the fundamental right to marry can be withheld.
Justice Scalia asked Olson, "When did it become unconstitutional to exclude gays from marriage?" Olson gamely responded, "When did it become unconstitutional to exclude interracial couples from marriage?" Scalia testily pressed Olson for a specific date, which Olson refused to provide.
Justice Kennedy in particular seemed very skeptical of the Ninth Circuit Court of Appeals' narrow argument striking down Prop 8 specifically in light of California's unique history of marriage equality. He characterized that decision as one that said that a state could only go all the way to full marriage equality as opposed to only going part way and providing some rights.
Once again, Sotomayor stepped in and steered the arguments back to the central question. If marriage equality is a right, she asked Olson, would any state restrictions on marriage, such as prohibitions on incestuous and plural marriages, survive? Olson had a quick answer: Polygamy is based on conduct, while sexual orientation is based on identity. Sotomayor also asked whether there is any way that the Supreme Court could limit its ruling to California. Olson said that such a ruling would be one in which the proponents were found not to have standing.
Speaking on behalf of the federal government, Solicitor General Verrilli underscored the administration's belief that Prop 8 should be considered under heightened scrutiny, a more searching form of judicial review. California's laws, he argued, blow up the proponents' claims that the state has an interest in reserving marriage for opposite-sex couples, because California affords full rights to same-sex couples.
When pressed by the justices on whether he was calling for a nationwide right to marriage equality (and when asked how a ruling could be limited just to the eight states that currently provide civil unions or domestic partnerships), Verrilli said that the administration wants to keep the door open for different cases to arise from different states.
Significantly, there was very little discussion of the proper level of scrutiny to apply to laws that classify on the basis of sexual orientation. This could mean that the justices think that the case will be decided on the basis of standing, or, more probably, that they believe that the scrutiny discussion will be fully argued tomorrow during the consideration of the constitutionality of Section 3 of the Defense of Marriage Act in the United States v. Windsor case.