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2013 No Clear Majority on Merits Evident During Prop 8 Arguments Arthur S. Leonard New York Law School, [email protected]

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Recommended Citation Leonard, Arthur S., "No Clear Majority on Merits Evident During Prop 8 Arguments" (2013). Other Publications. 356. https://digitalcommons.nyls.edu/fac_other_pubs/356

This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Other Publications by an authorized administrator of DigitalCommons@NYLS. 12 March 27, 2013 | www.gaycitynews.com LEGAL No Clear Majority on Merits Evident During Prop 8 Arguments Kennedy offers a way out for now — the court deciding it should not have taken the case

BY ARTHUR S. LEONARD significant portion of Olson’s time. show the greatest problem making factor in denying homosexuals ben- n the tenth anniversary The Prop 8 Proponents relied on up his mind. At one point, he mused efits or imposing burdens on them? of oral arguments in an advisory opinion from the Cali- that perhaps the court should not Is there any other rational decision- Lawrence v. Texas, fornia Supreme Court — issued at have granted the petition to review making that the government could the historic 2003 the request of the US Ninth Circuit the case. His questions and com- make? Denying them a job, not ruling that struck Court of Appeals — that held as a ments certainly revealed a sympa- granting them benefits of some sort, downO laws against consensual matter of California law that initia- thy with the plaintiff couples’ claim any other decision?” sex, the US Supreme Court took tive proponents have standing to to the right to marry, particularly Cooper’s response, a major con- up the contentious issue of same- defend their initiative if the state in emphasizing the potential harms cession, was, “Your Honor, I can- sex marriage on March 26. Late last officials who would normally do Prop 8 inflicts on the thousands of not. I do not have any — anything to year, the high court granted the so refuse. Their standing, Cooper children being raised by same-sex offer you in that regard.” Instead, he petition by the Official Proponents argued, is not based on the “individ- couples in California. argued that same-sex couples and of California’s Proposition 8 that it ualized injury” the Supreme Court At the same time, he seemed both- different-sex couples are not “simi- review rulings by lower courts that normally requires, but instead on ered by the idea that a ruling on the larly situated” with respect to what the 2008 voter initiative violates the their designation as representatives merits could immediately put a stop he argues is one of the state’s impor- Equal Protection Clause of the 14th of the state’s interest. This reason- to the unfolding political debate and tant interests in marriage — provid- Amendment. ing struck the Ninth Circuit as suf- impose same-sex marriage through- ing a vehicle for responsible procre- The written transcript and audio ficient, but some of the justices had out the country. He was receptive to ation and child-rearing. In that way, recording of the argument persuade problems with it. Cooper’s point that same-sex mar- he argued, Sotomayor’s question is this observer that, at least as of Olson, arguing for the plaintiff riage is a new phenomenon, that its not relevant to this case. today, there is no majority on the couples, harped on the point that long-term impact on society is as yet Cooper quickly recovered from his court to rule one way or the other on initiative proponents are not officers unknown, and that a California voter “concession” and argued that sexual the merits of this case. It is possible of the state, not accountable to the might rationally conclude that Prop 8 orientation should not be deemed that the oral argument on March 27 state or subject to its control, capa- would prevent potential harms while a suspect classification — which on the constitutionality of the feder- ble of running up large legal fees, allowing the “experiment” to play out would trigger heightened scrutiny al Defense of Marriage Act may cast and lacking in the fiduciary obliga- in other jurisdictions. This argument of laws that treat gay and further light on what will happen, tion public officials have to act in the could pull him over to the conser- people differently. “The class itself is since many of the underlying argu- public interest. Verrilli tried to evade vatives, who seem prepared to rule quite amorphous” and “defies consis- ments are the same. the standing question, but when that there is no constitutional right tent definition,” he argued. Charles Cooper appeared for the pushed to take a position said it was for same-sex couples to marry. But During Olson’s argument on the Prop 8 Proponents, Theodore Olson a “close question” but that “the bet- his reluctance to adopt that extreme merits, Justice Antonin Scalia sig- for the two same-sex couples who ter conclusion is that there’s not view, which would be inconsistent naled where he — and most likely brought the challenge in San Fran- Article III standing.” with the underlying rationale of his Justices Samuel Alito and Clar- cisco federal district court, and US Some justices seemed sympathet- opinion for the court in the Lawrence ence Thomas — would come down Solicitor General Donald Verrilli, Jr., ic to Cooper’s argument that if the sodomy case, could make a dismiss- on the merits, by asking the plain- appeared as “amicus curiae” (friend Proponents were not given standing, al without an opinion on the merits tiffs’ attorney when the exclusion of the court) to present the federal state officials who disliked a popular his most desired escape hatch. of same-sex couples from marriage government’s position in support of initiative would effectively have the Such a neat solution would avoid became unconstitutional. Was it the plaintiff same-sex couples. power to veto it by refusing to defend creating a national precedent while unconstitutional in 1791 when the The court had allocated an hour it in court. This was an argument restoring the right to marry in Cali- Bill of Rights was adopted? In 1868, for this argument, but eight of the that impressed the Ninth Circuit. fornia. The court could decide it had when the 14th Amendment went justices were so fully engaged that It’s unclear if standing will be acted “improvidently” in earlier grant- into effect? Scalia’s general posi- they allowed the session to run for the basis for the court’s ruling. If a ing the Proponents’ petition to hear tion is that constitutional provisions about 90 minutes. The extra time majority finds that the Proponents the case —a device it has used in the are limited to the meaning they had can largely be attributed to a ques- lacked standing to appeal the rul- past to avoid ruling on a contentious when they were adopted. tion the court added when it grant- ing, then the Ninth Circuit’s decision issue. Dismissing its earlier “writ of Olson countered with well-worn ed the petition to review the case — — the outcome of the Proponent’s certiorari” would be the equivalent of examples. When did public school whether the Proponents, who inter- appeal of the district court deci- a denial of review, which should not segregation become unconstitutional? vened in the absence of California sion striking down Prop 8 — would be construed as either approving or The Congress that approved the 14th state officials defending Prop 8, had be vacated. District Court Judge disapproving the Ninth Circuit ruling Amendment and sent it to the states “standing” as required by longstand- Vaughn Walker’s original ruling, that affirmed Walker’s ruling against for ratification maintained a segre- ing precedent. then, would be left essentially as an Prop 8. No national precedent would gated school system in the District of The arguments back and forth on unappealed trial court decision, with be established. Columbia, and the Supreme Court this question signaled the impor- no value as precedent but binding on One of the important issues in approved the doctrine of “separate but tance some of the justices attached the parties to the case. Even though considering the case on the merits equal” in the 1890s. Unless Scalia is to it. Chief Justice John Roberts clerks in only two of the state’s 58 is whether the court should subject ready to repudiate the 1954 Brown v. interrupted each of the lawyers at counties were sued, the entire state Prop 8 to “heightened scrutiny,” a Board of Education decision, his his- the outset of their presentations, would almost certainly resume issu- standard under which its Propo- toricism is blatantly inconsistent, but cutting off their attempts to argue ing marriage licenses to same-sex nents would lose if they could not that doesn’t give him pause. He hec- the merits by asking them first to couples under this scenario. demonstrate that the measure sub- tored Olson for a few minutes on the address the standing issue. He didn’t An out based on standing may stantially advanced an important attorney’s inability to pinpoint the redirect Cooper back to the mer- be a handy fallback position for the state interest. Justice Sonya Soto- moment when same-sex marriage its until he had used up a substan- high court, particularly since Justice mayor asked Cooper, “Outside of the acquired the status of a constitution- tial portion of his argument time on Anthony Kennedy, generally seen as marriage context, can you think of al right. Fortunately, Scalia’s view on the standing question, and he also the swing vote between the conser- any other rational basis, reason, for allowed that issue to eat up a sub vative and liberal wings, seemed to a state using as a c PROP 8, continued on p.14 14 March 27, 2013 | www.gaycitynews.com COMMUNITY Pro-Israel Gay Group Hosts LGBT Center Gathering In freighted debate over “,” A Wider Bridge offers insight into LGBT progress in Jewish state

BY DUNCAN OSBORNE A Wider Bridge takes its events to US ollowing a two-hour event at colleges, sponsors trips to , and the Lesbian, Gay, Bisexual brings Israeli leaders and activists & Community to speak in the US, Slepian said. Center, Arthur Slepian, The March 17 program featured Irit the founder and executive Zvieli-Efrat, the chief executive officer of directorF of A Wider Bridge, explained , a gay group, and Avner Dafni, why he thought it was important to bring executive director of , a pro-Israel perspective to the queer which has operations in 21 Israeli com- community. munities. “I felt like, particularly for LGBT Jews, The problems they confront are identi- Israel had become something that we cal to those that any US-based gay non- just argue about,” Slepian told Gay City profit experiences — winning the hearts News. “That was particularly distress- and minds of the public, getting funding, ing to me because there is this amazing battles with the closet, and conservative LGBT community in Israel.” religious opponents who have influence The three-year-old group has held CITY NEWS GAY in the halls of power. events in Seattle, in and near San Israel Gay Youth’s Avner Dafni and Irit Zvieli-Efrat of Hoshen. Zvieli said that advancing the commu- Francisco, and in Washington, DC. nity’s interests in Israel relied on authen- This was its first, though not its last, It tells the story of Uzi Even, a chemis- its history in 2000, Even became the first tic stories to counter anti-gay percep- major New York City presentation. The try professor at University who openly gay person elected to the Knesset, tions Israelis may hear or have. organization was barred from the Cen- was fired from his government work after Israel’s parliament, in 2002. “They would hear another story,” she ter because of a moratorium imposed he came out of the closet. Even’s story The film does discuss Michal Eden, an said. “It all connects together the person- in 2011 on renting space to groups looked like Frank Kameny’s tale of being out lesbian who became the first queer al story… In the last 10 years, the LGBT that “organize around the Israeli-Pales- dismissed from his federal government person to gain any elected office in Israel community got very present.” tinian conflict.” job in the US in 1957 after his sexual when she won a seat on the Tel Aviv City While Tel Aviv is a gay center of sorts That moratorium was lifted on Febru- orientation was disclosed. Like Kameny, Council in 1998. in Israel, like the US, there remain parts ary 15. Even fought the government. Israel has a national law that bars of the country that are very conservative “We think that engagement and dia- There is the story of Yossi, a young gay workplace based on and not welcoming for gay Israelis. logue is better than silence,” Slepian told man who was physically abused by his sexual orientation, and it allows open “It’s still very difficult to be a gay kid the crowd of over 100 people at the start father and rejected by his mother. With service in its military. Same-sex cou- in ,” Dafni said, referring to a small of the March 17 event. no place to turn, Yossi made a desperate ples can adopt in Israel. While the gov- city in northern Israel where his group “We have a really special opportunity phone call to Even. The professor and ernment recognizes marriages between operates. tonight to learn about life in Israel for his partner, Amit Kama, became foster gay and lesbian couples performed While it seemed that the queer com- LGBT people,” Slepian said. “The coun- parents to Yossi in 1995 and were final- elsewhere, those couples cannot marry munity in Israel was on a path to wider try has evolved a lot over the past several ly allowed to legally adopt him in 2009. in Israel. acceptance, it was shocked by a 2009 decades.” Yossi’s story would be all too familiar to While detractors may dismiss these shooting in a gay center in Tel Aviv that The evening began with a screen- the clients and staff at any US agency stories as pinkwashing, “Gay Days” killed two and wounded 15 others. ing of “Gay Days,” a 2009 documentary serving queer youth. presents them as hard-won victories that “We realized there is still a lot of work that traces the growth of what is now a Even and Kama, who married in Can- were achieved by queer activists in Israel to do,” Dafni said. vibrant queer community in Israel. The ada in 2004, were the first gay couple to and not as government gifts handed out Zvieli shared that view. 70-minute film has elements that are be recognized as a foster family by the to portray the Jewish state as modern “ is like cancer,” she said. reminiscent of the gay community’s his- Israeli government. Though not men- and to distract from its actions in the “If you don’t catch it while it’s small, it tory in America. tioned in the documentary, which ends Israeli-Palestinian conflict. can blow you in the face.”

c PROP 8, from p.12 tion, under which states that accord comments to understand and endorse enough to justify rescinding the right same-sex couples the legal rights the argument that excluding same- to marry. This, in turn, would set up this does not command a majority on of marriage under the guise of civil sex couples from marriage might be the likelihood that the Ninth Circuit the court, just the loyalty of Thomas unions or domestic partnerships insupportable as an equal protection might reverse trial court decisions and, usually, Alito. have no rational basis for withhold- matter, so as virtually all commenta- from Nevada and Hawaii, now pend- Roberts has not been a consistent ing the status of marriage. Roberts tors have suggested in predicting the ing on review, concerning the right follower of that view, and Kennedy and Justice Stephen Breyer shot outcome, it may come down to Ken- of same-sex couples to marry there. clearly repudiated it in Lawrence v. holes through this argument, and all nedy. What nobody had anticipated, Reversals of district court rulings Texas. So the case won’t be decided of the justices who commented on it however, was Kennedy’s suggestion against the plaintiffs would quick- on that basis. saw it as odd that states that had not that review should not have been ly set up the potential for two new None of the Justices seemed accorded any rights to same-sex cou- granted, creating the possibility that Supreme Court cases in which the enamored with Solicitor General Ver- ples would be left alone while those the Ninth Circuit’s decision would states of Nevada and Hawaii would rilli’s argument that the court should that had granted such rights would stand without being endorsed or undoubtedly have standing should adopt the Ninth Circuit’s rationale be found to violate the Constitution rejected by the high court. they choose to appeal. and hold that Proposition 8 was by not going “all the way.” Nobody That result would cabin the impact A dismissal of the Prop 8 Propo- unconstitutional because California seemed to favor this approach. to California in the short term, but nents’ appeal without a ruling on the had already adopted family law poli- Roberts did not tip his hand on would also leave unquestioned by merits might buy the high court a bit cies that undercut all of the Propo- the merits during the questioning, the Supreme Court the Ninth Cir- more time, but one or two new same- nents’ arguments for its enactment. and the four Democratic appointees cuit’s view that the arguments in sex marriage cases could well arrive This is the so-called eight-state solu- appeared from their questions and support of Prop 8 are not substantial on its doorstep in fairly short order.