digitalcommons.nyls.edu Faculty Scholarship Other Publications 2013 No Clear Majority on Merits Evident During Prop 8 Arguments Arthur S. Leonard New York Law School, [email protected] Follow this and additional works at: https://digitalcommons.nyls.edu/fac_other_pubs Part of the Law and Gender Commons 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 gay 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 lesbian 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.