Prop. 8 at the Supreme Court: Reflections from Today’s Hearing
Update: Be sure to check out Brenda’s coverage of the Supreme Court Hearing on the Defense of Marriage Act (DOMA).
My feelings are full & complex after today in the Prop 8 hearing. Since they started with Chief Justice Roberts interrupting the Proponents’ lawyer, Cooper – barely a sentence in – to say he wanted to hear about whether they even had standing to bring the case, there was a full-throated bombardment from virtually every Justice (except Thomas who never says anything) on that issue. My conclusion is that there may be 5 Justices who don’t think they should be hearing the case, which, of course, brings up the question of why did they take it in the first place? However, though I won’t go into it here, I think Scalia, Alito and maybe even Sotomayor alluded to a real problem: If these people don’t have standing, who does? Someone should. Ted Olson – on our side against the initiative, as was the Solicitor General of the U.S., Donald Verrilli, – says that people who represent an initiative, or put another way, the proponents of Prop 8, have no fiduciary duty to the state and, therefore, should not be able to represent it as they’re trying to do here. Does that mean he’d prefer to let the lower court decision that Prop 8 is unconstitutional ride? No. He’d like the court to rule on the constitutional question but this remains a big open issue in the case: I’m not sure we have a majority willing to reach the broad question of whether it’s constitutional, in any state, to prevent us from marrying – absent the Prop 8 history.
Later in the hearing but relevant here, the Solicitor General was grilled on the jurisdiction of the Court and the sweep of its ruling: Justice Breyer asked pointedly how he can argue that a state that does nothing to protect us can be left alone but a state like California, or even any other that has Civil Unions or Domestic Partnerships and thus has tried to be more fair, can be forced to let us get married (vs. allow those other states to relegate us to no fairness at all).
When the issue of the constitutionality of Prop 8 was addressed head on, Justice Kennedy seemed clearly on our side – that Prop 8 is unconstitutional That was clinched for me when he asked Cooper (their lawyer) if he really thinks we should prevent parents of the 40,000 children of same-sex from “full recognition and full status”, from getting married? It became clear that the Justices leaning toward holding Prop 8 unconstitutional would grill Cooper most, whereas the conservatives reserved their fire-power, such as it was, for Ted Olson.
Justice Breyer asked the more than obvious question: If procreation is the issue, as Cooper kept insisting, why should California allow sterile couples to marry? And Justice Kagan, picking up on this, asked Cooper if it would be constitutional to prevent people over 55 from marrying. After some jokes about whether it would pass muster to ask people who want to marry if they’re both sterile – or not – Cooper actually said that men outlive their own sterility, meaning they can father babies forever. (Whether they should is something about which rational minds might wonder.) This does not speak to the issue of how the female persons in those marriages might actually bear children…. By this time, Cooper, who said he feels it’s good for over 55-year-old men to be married so they wouldn’t go around impregnating random other women, really seemed not only flustered but pathetic.
Justice Ginsburg, not to be stopped by the standing dilemma that I feel quite certain she has, then observed that people in prison are allowed to marry, people who will never get out and so cannot make babies. How is that okay but preventing us from marrying is not? (I hope the strength of this point will carry her on to a broad ruling on the wide-spread prohibition against same-sex marriage in most states. And, having sat at the counsel table with her when she argued the most important gender discrimination case of the ‘70s, I know she will rule on the merits for us, if not now then in the very near future.)
It finally came time to stop Cooper. Ted Olson was eloquent when he stated that the right to marry is fundamental, part of the right of privacy, association, liberty and the pursuit of happiness. And moving when he quoted Justice Ginsburg in the VMI case “A prime part of the history of our Constitution is the story of the extension of constitutional rights to people once ignored or excluded.”
Of course, Scalia, who believes the constitution is now what it was in the beginning and always will be, wanted to know exactly when it became unconstitutional to exclude gays and lesbians from marrying. I could almost see others scratching their heads with this one. Ted Olson advised him that in California this happened when the state Supreme Court ruled we had the right to marry. This led Scalia to counter with the query: if Prop 8 had happened before the state court ruling, would we have any argument about its unconstitutionality? This, of course, is his way to get to the issue of what they should do about states that now have in place such prohibitions on our marrying. Also, to Scalia, if they grant same-sex couples the right to marry we can expect those couples to have the right to adopt children and he thinks that’s controversial. For me, this goes back to Florida (far from California) where in the ‘70s Anita Bryant started her Save the Children campaign and where it’s still impossible for gays & lesbians to adopt children. Justice Ginsburg countered on this point that it is legal for us to adopt in California, which is all that technically matters here.
And so there remains a big open issue in the case: Do we have a majority willing to reach the broad question of whether it’s constitutional to prevent us from marrying? I know that on the merits – if they get to them – Prop 8 would be unconstitutional to at least the 4 liberal Justices and Kennedy. However, I feel quite sure that a majority doesn’t want to rule for the whole country right now. I would like to be surprised, but it seems that it will take another case brought by same-sex couples in a state that does not have the complicated history of Prop 8 to get to that. Anyway, I still think that we will have a ruling that Prop 8 is unconstitutional. The rest of the country and maybe even the other states in the 9th Circuit may have to wait.
A postscript: I chatted with our CA Attorney General, Kamela Harris, before the hearing, and she was as excited as I have been. I talked with Lt. Gov. Gavin Newsom afterwards and he was as confused as I felt – about the likely outcome. Now that I’ve had a chance to review the transcript and to think more calmly, I feel it was a victory to be in that courtroom, to hear the ways in which we have been discriminated against – and to feel the inevitable tug of history into a future of equality for all of us.
Brenda Feigen is a noted activist with a legacy that goes back decades. Co-Founder of the National Women’s Political Caucus, Ms. Magazine and one-time Vice President of the National Organization for Women, and currently heading her own private practice in Los Angeles, Equality California is proud to count Brenda as a member.