WASHINGTON – Dissecting the transcript of the Supreme Court hearing on Proposition 8 and listening to the audio for nuances and emphasis can lead one to conclude that the nine justices are squirming under their black robes and concerned about rendering a sweeping decision that would affect the entire country.
What is extremely clear is that two justices – Antonin Scalia and Samuel A. Alito Jr. – are completely unwilling to have an open mind, and they continue to display disdain and disgust at homosexuality with an intensity that borders on homophobia. Even though he never speaks during oral arguments,
Clarence Thomas is also part of this far-right clique, based on his rare public statements made at appearances for which he is typically paid to speak. So their impartiality can be easily challenged.
Also crystal clear is that four justices – Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan – are tolerant of homosexuality and sympathetic to the civil-rights struggle of gays and lesbians to be treated equally under the law.
The swing votes
Like a good poker player, Chief Justice John G. Roberts Jr. did not show his hand at the oral hearing on Prop 8, playing the role of moderator over the warring justices but occasionally asking questions that seemed to indicate that he enjoyed playing the devil’s advocate. Don’t forget for one New York minute that Roberts was the deciding vote in the ruling on Obamacare that shocked conservatives to their very core. It is also interesting to note that Roberts gave his lesbian cousin, who lives in California, a seat in the courtroom for the oral arguments on Prop 8.
Then there is Associate Justice Anthony M. Kennedy, the California native born in 1936, the same year that Scalia was born. They are the two oldest justices of the high court, and both are among the six Roman Catholics on the bench. Associate Justices Ginsburg, Breyer and Kagan are Jewish.
Kennedy often finds himself as the “swing vote” on major court decisions, and he may very well find himself the key vote in the Prop 8 case. He was unusually candid during oral arguments on Monday morning, admitting that he was “struggling” with various issues and wondering “if the case was properly granted.” He sounded like members of the Republican Party who are soul-searching on this very issue.
Yet, unlike Scalia who wanted to talk hypotheticals and platitudes, Kennedy dove into real-world issues, worrying about the “40,000 children in California that live with same-sex parents.” He said the children wanted their parents to have full recognition and full status under the law, and said the voices of the children were important in this debate. This was a very nice counterpoint to Cooper’s argument that marriage should be exclusive to those couples who procreate.
First impressions by the pundits
Long-time SCOTUS legal observers quickly opined that the high court would not make a sweeping ruling in favor of same-sex marriage, despite national polling showing a growing majority of Americans are supporting it. Some justices fretted that it was “too soon” to decide on marriage equality, and Alito and Scalia ignored a mountain of scientific evidence that shows the emotional and wellness benefits to same-sex couples who marry.
Remember, too, that many of these legal observers were so very wrong on predicting the SCOTUS decision about Obamacare. Other pundits warned not to place too much emphasis on the line of questioning by the justices, who seemed more coy in court this time than in recent high-profile cases.
Kennedy asked why the high-powered AFER lawyers wanted to take the American society into “uncharted waters” regarding same-sex marriage.
AFER’s lead attorney at the high court, Republican legal legend Ted Olson, rebutted:
“You suggested that this is uncharted waters. It was uncharted waters when this Court, in 1967, in the Loving decision, said that prohibitions on interracial marriage, which still existed in 16 states, were unconstitutional.”
Ted Olson stands up to Scalia
Olson was nothing short of brilliant during the oral arguments, successfully fending off a challenge by Scalia that seems totally irrelevant and refocusing back on the key points he was trying to make that Prop 8 discriminates against gay and lesbian couples who want to marry.
Charles Cooper withers
By contrast, Charles Cooper, lead attorney for ProtectMarriage.com - Yes on 8 proponents of Prop 8, fared poorly in front of the justices and needed a save from Scalia to even score a lonely point for his side.
Cooper failed to show how marriage equality “harmed” opposite-sex couples, withering under questioning by Kagan. He failed to justify how marriage should be reserved for opposite-sex couples who procreate, an argument which Kagan shredded easily by pointing out that infertile opposite-sex couples marry all the time.
In fact, Cooper’s arguments at the high court were as lame as they were in district court and in the appeals court. He could not find a reasonable answer on how same-sex marriage “harms” anybody.
Skirting the real issues?
The oral arguments, which lasted about 1 hour and 19 minutes, showed that the justices were peppering attorneys from both sides with a lot of questions that seemed to skirt the real issues in the case. None answered a key question of whether gay and lesbian couples who want to marry are being discriminated against by the majority.
All of this could be a smokescreen on how the justices will eventually rule as they debate the issues behind closed doors.
Some of the justices seemed preoccupied with whether Cooper and the ProtectMarriage.com – Yes on 8 team even had legal standing to appeal the ruling by District Judge Vaughn Walker that Prop 8 was unconstitutional. The issue of standing is the easy out for the high court, allowing the justices to avoid making a sweeping ruling in favor of marriage equality while permitting same-sex weddings to resume this summer in California. Chief Justice Roberts was among those who grilled Cooper on the standing issue.
“There’s a substantial question on standing,” Kennedy said. “I just wonder if this case was properly granted.”
Court observers said the justices seemed reluctant to make a “50-state solution” on marriage equality, and it was evident that the “9-state solution” proposed by U.S. Solicitor General Donald Verrilli, on behalf of the Obama Administration and the United States, was equally unpopular because it didn’t address the plight of gay and lesbian couples who want to marry in the states that banned same-sex marriage or civil unions.
AFER attorney David Bois, afterwards, marveled how there was “no attempt to defend the ban on marriage” during the oral arguments.
But AFER attorney Ted Olson was cautious, admitting that he had no idea how the justices would rule, based on their questions. And as one of the veteran litigants before the high court, Olson should know how to read the tea leaves.
Two possible outcomes seem plausible, based on the oral arguments and questions by the justices.
If SCOTUS decides that Cooper and company have no standing, that means District Judge Vaughn Walker's ruling that Prop 8 is unconstitutional will stand and the Ninth Circuit Court of Appeals decision will be vacated because the appeal was invalid. Walker's ruling was broader than the Ninth Circuit's decision, and this would make it all but certain that marriage equality will return soon to California. The interesting part of this scenario is that Walker's ruling could then become the basis for other rulings in other marriage cases around the nation.
There is an outside chance that SCOTUS, if it is hopelessly deadlocked and cannot form a majority opinion, could simply wash its hands of the case and send it back to the Ninth Circuit. In that scenario, same-sex marriage is almost a certainty in California but the appeals court ruling was narrower than Walker's decision.
Almost none of the legal observers, outside of far-right conservatives, believe that SCOTUS will uphold Prop 8.
Ken Williams is Editor in Chief of SDGLN. He can be reached at firstname.lastname@example.org, @KenSanDiego on Twitter, or by calling toll-free to 888-442-9639, ext. 713.