The Prop 8 case, after oral arguments

March 27, 2013

Supreme Court LGBTYesterday, the Supreme Court heard oral arguments in Hollingsworth v. Perry – the “Prop 8 case.”

I had previously made predictions about the outcome of this case, which, after reading and listening to the oral arguments, I will need to revise.

I’ll be honest and admit that I underestimated how anxious some members of the Court are about the idea of same-sex marriage.  This is maybe due to a generational gap.

Anyhow, in the previous prediction, I concluded that the Supreme Court would rule 7-2 not only to uphold the Ninth Circuit’s opinion, but to also rule broadly to say that states cannot forbid same-sex couples from getting married.

First, the things on which I was accurate:

The four liberal justices seemed more than willing to vote this way if they could get a fifth (or sixth) vote.  All four seemed to view prohibitions on same-sex marriage similarly to laws enforcing racial segregation.

Justice Sotomayor in particular offered quite a bit of challenge to the attorney for the Prop 8 supporters (asking questions about why the state doesn’t prohibit couples over the age of 55 from getting married, if the state’s interest in prohibiting same-sex marriage is to encourage “responsible procreation”).

Justice Scalia, likewise, was par for the course with my last prediction. 

He not only fed responses to other justices’ questions to the Prop 8 supporters’ attorney, but he also cited “considerable disagreement…among sociologists as to what the consequences of raising a child in a…single-sex family, whether that is harmful to the child or not.”

Unfortunately, no one asked why the state doesn’t criminalize single parenthood if this is actually true, but I digress.  My point is that Scalia came out (no pun intended) very clearly for the Prop 8 proponents.

Justice Alito seemed to buy into this argument, too, at least as far as having concerns on the “newness” of same-sex marriage.  In addressing the Solicitor General (who was arguing against the Prop 8 supporters):

“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?”

This view of same-sex marriage being a relatively new thing, and that the Court should show restraint and let the “people” decide – in other words, decline to rule on the issue until more states have weighed in on it, seemed to be prevalent among the conservatives (in contrast to the liberals, who viewed this very much as a civil rights issue).

In addition, the view among conservatives – Justice Kennedy included – that by granting same-sex couples the right to marry, the Court would be fundamentally “changing” the definition of marriage as it has been for “2,000 years or more.”

This belief manifested itself quite clearly in a comment by the Chief Justice to the attorney for Prop. 8’s challengers:

“If you tell a child that somebody has to be their friend, I suppose you can force the child to say, this is my friend, but it changes the definition of what it means to be a friend.

Does this mean that I think it will be a 5-4 decision upholding Prop 8?

No.  In fact, a decision upholding Prop 8 is the least likely outcome because of the standing question.

All of the liberal justices, along with Justice Kennedy and probably Chief Justice Roberts, all support a conclusion that the Prop 8 proponents lack standing (quick history of the case on this point: the Prop 8 supporters stepped in to defend the law after the State of California refused to appeal the district court ruling striking down Prop 8).

If it looks like there’s not five votes to affirm the Ninth Circuit in striking down Prop 8, the liberal justices will obviously join with Kennedy and Roberts and find that the law’s defenders lack standing (the consequences of which are uncertain, but seem likely to lead to Prop 8’s destruction).

On the other hand, I still highly doubt that the Court would have granted certiorari to a case with such volatile issues if they were just going to decide it on jurisdictional grounds.

I’m further persuaded that the case will not be decided on jurisdictional grounds by some comments by Justice Kennedy that may have been overshadowed by his jurisdictional comments: in a seeming rebuttal to Scalia’s assertions about the detrimental impact same-sex marriage may have on children, Kennedy asserted:

“There are some 40,000 children in California…that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?”

It’s difficult to ignore the significance of that statement.

In any case, I’m not going to make a final verdict on this case until I have had a chance to read and listen to today’s oral arguments on U.S. v. Windsor.

I would be shocked if the opinions in these two cases weren’t announced at the same time, and didn’t rely on one another in their holding.

I will be watching the Chief Justice in particular, too, because I suspect the same thing will happen here as did with last year’s ACA ruling: Roberts leaves oral arguments thinking that he will rule one way on the issue, but, after considering the impact on his legacy in the Court, he will switch.

At this point, then, the only thing that I’m certain of is that the four liberals and Justices Scalia and Thomas remain in the same respective camps that they were before the arguments.

To be concluded tomorrow…