Musings on the Prop 8 argument

You know, for all the talk we've heard today about the Prop 8 oral argument, my assessment after reading the transcript is that we really didn't learn anything.

It wasn't news that the Prop 8 proponents can't actually identify any harms to so-called "traditional" marriage from extending marriage rights to same-sex couples. Nor was it news that their argument itself is pretty darn flimsy. Even opponents of marriage equality have to admit that the legal justifications offered for denying marriage rights aren't terribly compelling.

It wasn't news that Scalia is squeamish about the gays. Anyone who read his dissent in Lawrence v. Texas was already well aware of his discomfort with the whole idea. His bizarre series of questions to Ted Olson, who argued for the opponents of Prop 8, frankly made him seem a little unhinged. I got the sense Olson had no idea what drug Scalia was on. I think it also revealed at least one deep flaw in Scalia's claimed view of Constitutional interpretation. Scalia claims he interprets the Constitution based on what the commonly-held view of any particular provision was at the time that the provision was adopted. This is how he gets away with saying things like gender discrimination isn't covered by the Equal Protection Clause. Because even though the plain words of that Amendment don't exclude women, the people who voted to adopt that Amendment certainly didn't mean for women to be equal under the law. (If that alone doesn't prove that his claimed style of interpretation is dead, dead wrong, I don't know what will convince you.)

Anyway. He badgered Olson to tell him exactly at what point prohibitions against same-sex marriage became unconstitutional. He wanted to know a date and proclaimed that he couldn't know how to decide the case if Olson couldn't answer that question. Olson did his best to say what an odd, unprecedented question that was and that no court ever has thought about any sort of issue that way, but it would have been nice if one of the other justices could have stepped in and changed the weird subject. Roberts did try, but Scalia was like a dog with a really odd bone. Maybe this doesn't seem like such an odd sequence to you, but to an experienced appellate attorney, it was a very bizarre line of questioning.

In my reading, I don't see any questions posed by any of the justices that should make anyone nervous that their vote might be shockingly unexpected.

We did learn that Scalia doesn't seem familiar with the concept of the US Supreme Court dismissing a case as having been improvidently granted. This came up during the proponent's rebuttal when Sotomayor pondered if the Court had taken this issue too early in the history of same-sex marriage. Scalia's response was along the lines of, "We can't do that bizarre and unheard of thing you're suggesting!" Which struck me as odd because it's so not-unheard of, there's a term for it.

In the end, there was really only moment that excited me. Equal Protection cases are, ironically, not treated equally. There are three levels of review. For laws that separate people on the basis of a suspect classification, appellate courts apply strict scrutiny, the highest level of review around. That pretty much only applies to race and religion. Then there's this squishier intermediate scrutiny that sex classifications get. All others receive rational basis review. For some time now, there's been a fight going on about what kind of review sexual orientation classifications should get. Generally, we're still kind of stuck with rational basis review.

This topic came up in law school and I remember pondering to the class how on earth there was any question because issues relating to sexual orientation are almost always discrimination on the basis of sex. None more so than the marriage issue. I mean, what's the line anti-same-sex marriage people love to say? Gays can get married. There's no law against a gay man getting married. He just has to marry a woman. Sure, the effect of laws prohibiting same-sex marriage is that gay and lesbian persons can't marry the person they would choose. But the actual legal prohibition is about the sex of the two parties, not their sexual orientation. To me, this seems clear as day, but I remember everybody in my class looking at me like I was nuts. (Did some people think I was somehow making light of discrimination against gays? I was just, and still am, trying to make the best argument for why discriminating against gays is unconstitutional.)

I wrote before that I was finally vindicated a tad when the federal district court judge who heard the Prop 8 trial wrote a long, thorough opinion in which he said what I've been saying all along: bans on same-sex marriage are sex discrimination and therefore merit higher scrutiny than mere rational basis. (Of course, he went on to say Prop 8 doesn't survive rational basis scrutiny, either.)

So my very favorite moment from today's argument was this:  Justice Kennedy asking, "Do you believe this can be treated as a gender-based classification? -- It's a difficult question that I've been trying to wrestle with."

Come on, Kennedy. Come to the light! It's not a difficult question, not at all. Judge Walker laid it all out for you in that opinion he wrote just for you. If you want to pick my brain on the idea, I'm available, Your Honor.

I have no idea how this case will come out. Maybe it'll be a 4-4-1 vote. Four for, four against, and Justice Kennedy ruling it should be dismissed as improvidently granted. A tie would mean the lower court ruling (declaring Prop 8 to be illegal) would rule. Maybe the decision will focus on the idea that the plaintiffs didn't have Article III standing to bring a federal case. I've got to say, I'm much more interested in tomorrow's DOMA case. That argument will be far more illuminating, I think.