Prop. 8 at the Supreme Court: Reflections from Today’s Hearing

March 26, 2013 By Brenda Feigen

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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.

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23 Responses to “Prop. 8 at the Supreme Court: Reflections from Today’s Hearing”

March 26, 2013 at 11:17 pm, Gerald said: I just think that Olson missed a HUGE opportunity to directly address Kennedy's concerns. Kennedy asked Cooper right up front: "Do you believe this can be treated as a gender-based classification?" and said, "It's a difficult question that I've been trying to wrestle with it." Cooper said "No." Olson never touched it, but Kennedy said that it was his concern. Was he not listening? Of course it's gender (or sex) discrimination; the only legal discrimination in these cases is SOLELY based on the sex of the partners, not their sexual orientation. If it's sex discrimination, then it's intermediate scrutiny, and Kennedy has his answer. Olson botched this opportunity.

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March 26, 2013 at 11:28 pm, Dani Heart said: I wanted to scream while listening to the audio when they got to the part of when did it become unconstitutional (That it has always been unconstitutional.. it just hasn't been recognized as such until a confused misled majority of Californians decided to vote blatant discriminatory harm into our state constitution did we have cause to bring this action. I was very deeply disheartened by the talk of the initiative process being the will of the people and how could our state representatives not uphold this in court? I don't think it should ever be legal to harm a specific class of people by a majority vote. Why not just vote back in slavery or ban interracial marriage again? Aren't our courts put there to apply things equally under the law. The majority doesn't have a good track record. I honestly don't think that prop 8 would have passed had it not been so confusing. I was personally approached in front of a Target and lied to about what the initiative was for and was asked to sign it. I feel if more people knew all the ramifications of that vote it would not have passed. So many were misled and lied to, and thank goodness for those that then went forth to try and correct this injustice.

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March 26, 2013 at 11:39 pm, Linda Ullrich said: Based on this report, I am cautiously optimistic about how the Ct might rule. Unfortunate, though, that it appears they wouldn't rule on the constitutional issue of gay marriage in general.

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March 26, 2013 at 11:51 pm, DAVID K ELKINS said: Thanks for your reflections and insight, Brenda.

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March 26, 2013 at 11:55 pm, Floyd Dewd said: While I have never been the least bit inclined to be homosexual, I wholly believe that homosexuals from either gender have the "right" to marry any (approving) gender they desire. However, this is not a 'civil' rights issue... in America, as with most every other nation on the planet, it is a 'moral' issue. As for morals, the next thing we know, the biggest issue in America will not be whether it is legal to marry a farm animal, but whether it's legal for a homosexual to have such a relationship with a farm animal. What's after that? Incest marriages? pedophilia marriages? Honestly, where do homosexuals draw their line?

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March 27, 2013 at 12:28 am, Gregory B. Henry. Esq. said: Thank you for your cogent review of the proceedings of today. Hope we have a decision tomorrow. Keep on Truckin' GBH

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March 27, 2013 at 12:32 am, Jenny said: I really appreciate this account. The best and most accessible read today. Thanks for your levity and for giving a good synopsis. Excitement and confusion about sums it up. I now wonder if the Prop 8 proponents strategized not having standing to ensure that the larger constitutional question would not be addressed. Seems unlikely, but not impossible. Will you be there tomorrow?

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March 27, 2013 at 12:43 am, Carrie Levin said: Thank you for your wonderful perspective on today's account - so riveting, exciting and most of all hopeful.

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March 27, 2013 at 1:26 am, Steven Dornbusch said: After listening (and occasionally wondering to whom I was listening) and just barely following today's legal arguments, this analysis, both legal and political, is very well thought out. After all the claptrap about "judicial activism" I saw quite the opposite in play. I would appreciate trying to answer the question of the relation of the two constitutional issues before the Court in the next proceedings. Write on! Thank-you.

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March 27, 2013 at 1:27 am, Lindee Reese said: Thank you, Brenda, for an intelligent, informed report on today's deliberations.

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March 27, 2013 at 1:31 am, Gay Lyon said: I think that the answer to Justice Scalia's question of exactly when it became unconstitutional to exclude gays and lesbians from marrying is in 1954, when Brown v. Board of Education found that "separate but equal" was an unconstitutional violation of equal protection.

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March 27, 2013 at 1:47 am, Maureen said: Thank you so much for your comments on Prop 8 hearing.

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March 27, 2013 at 3:11 am, Aimee Wilcox said: Thank you for a brilliant analysis

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March 27, 2013 at 3:32 am, JF Purcell said: Thanks for this summary of a very complex event, and even more complicated issues.

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March 27, 2013 at 4:31 am, Ted Snowdon said: More confused than ever. These Justices don't seem to give a hoot about justice. It's just a big pissing contest to them. They're nickle-and-diming us. It's no better than the gun debates, where we bicker and dither over endless details and never discuss why ALL guns should be banned. I can't believe that Procreation is still part of anyone's argument, since Marriage has nothing to do with making babies. That's how the case lost in California! Ginsburg knows better, but she has me worried.

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March 27, 2013 at 5:15 am, Liz said: Good reflection on today's case. I heard it on line and have faith we will have equal marriage and federal rights. <3

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March 27, 2013 at 1:06 pm, Jeremy said: I listened to the testimony and I can understand Ted Olson not immmediately knowing how to answer the question of when it became unconstitutional for gays to not be able to marry. However, I wish he eventually brought up the possibiltiy of Lawrence v. Texas. Although technically prisoners can get married too, I think citing Lawrence v. Texas (where homosexual behavior was decriminalized) would have given the justices some type of clear starting point as to when gay people were recognized as equal. If Lawrence v. Texas basically made it so that it was clear that there's no criminal aspect to being gay, then there's no reason why that a gay person shouldn't be considered equal under the law in all aspects.

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March 27, 2013 at 1:27 pm, Jeremy said: To add on the my previous post, I'd actually say that the unofficial starting point was when it was determined by the SCOTUS that marriage is a basic fundamental/civil right (Skinner, 1942). And everyone should be able to exercise a civil right.And then Loving v. Virginia clarified that it should be the one person of your choice. So, the only partial roadblock were the sodomy laws, criminalizing gay behavior. And once those were removed, then it is clearly unconstitutional for gays to not be able to exercise their civil right to marry.

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March 27, 2013 at 2:02 pm, cck said: Wasn't it unconstitutional to annul my marriage which happened during the first round of marriages in San Francisco? The state Supreme Court didn't make it unconstitutional. It always was.

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March 27, 2013 at 4:02 pm, Thomas A Cantwell said: How we DO complicate issues when our heads get detached from our hearts. Doesn't LIBERTY and JUSTICE for ALL still provide a guiding light? To quote my favorite bumper sticker: Don't Take Life so Seriously. After all, it isn't Permanent!

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March 27, 2013 at 4:24 pm, Morgan Vierheller said: The Constitution is clear: The Equal Protection Clause of the 14th amendment of the U.S. Constitution prohibits states from denying any person within its jurisdiction the equal protection of the laws. In other words, the laws of a state must treat an individual in the same manner as others in similar conditions and circumstances. A violation would occur, for example, if a state prohibited an individual from entering into an employment contract because he or she was a member of a particular race. The equal protection clause is not intended to provide "equality" among individuals or classes but only "equal application" of the laws. The result, therefore, of a law is not relevant so long as there is no discrimination in its application. By denying states the ability to discriminate, the equal protection clause of the Constitution is crucial to the protection of civil rights.

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March 27, 2013 at 6:08 pm, Kelly Kay said: I think the possibility that the case may be decided on the issue of standing cannot be over-emphasized. I was not surprised that the very first question from any of the justices came from Justice Ginsburg, who immediately forced Cooper to admit that the Court has never granted standing to the proponent of a ballot initiative. Justice Ginsburg - as all the other Justices know - is perhaps the foremost authority in the country on federal civil procedure. It's one of the subjects that she taught at Columbia Law School. So if she sees a standing problem, it is very real. And, yes, on the merits she is with us.

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March 27, 2013 at 11:01 pm, Ellie Schmidt said: Sincere thanks to Brenda Feigen for her thoughtful, really helpful, commentary! --Surely it is important to remember her comment about "being able to think more calmly--after reviewing the transcript" since, also as clearly said, we are all responding with intense emotions to the complex issues. Julian Bond was interviewed by Anderson Cooper and his comments also should receive wide spread repetition. As he indicated also, the many years of discrimination must be recognized and Prop 8 is unconstitutional. Phrasing it only slightly differently from Brenda Feigen's words, Bond maintained as well, that this is, as she said, "an inevitable tug of history into a future of equality for all of us." In my eighth decade of life, this writer remembers all too clearly, the grisly fears and horrors of past wars, not only the huge and smaller military encounters, but the pervasive displays of passions of hate and bigotry on our own soil against minorities. If our nation can respect the intelligent actions that bring about corrections to past wrongs, perhaps that will help to restore a more civilized society. Thanks to all the hard working folks who are making the changes happen to help it all come to pass peacefully. Ellie Schmidt, --a proud parent, grandparent, one in favor of Equality California, of PFLAG, and a former university teacher.

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