Plantiff Files Prop 8 Brief For Supreme Court

[Stone holm]

My impression was somewhat the opposite, with my view of the Plaintiffs as extremely hyperbolic.

But I'm open to being shown that the Proponents are also playing that game. Can you show me where in their brief they actually say that "society essentially will collapse"? Or was that your use of hyperbole? (Consider this an official call for reference. Thanks.)

I confess that was my hyperbole, there was flag waving in the Proponent Brief, I did not see much in the Opponent brief. In fact at times it seemed like the were not addressing each others arguments, and since only the Proponents seemed to be bringing up religion in kind of a defensive gesture to no such argument in the opponents brief, I began thinking that the brief might not be intended to win but to help establish a defensive 1st Amendment shield for the future to protect against intrusions after it becomes the law of the land. I could of course be just imagining that, but the thought clicked with a comment made by someone else in the topic about Who Wrote The Proclamation on Families. The commentor speculated that it was written by the Church's legal department in order to establish theological doctrine for later use in litigation. I had never actually entertained that cynical of a thought before, but having considered it...well it made sense, and it is the only way I have been able to rationalize why the Church would be trying to defend what is clearly an attempt to legislate religious doctrine.

[california boy]

Part of the reason that women are far less financially dependent on their husbands, is that marriage rates have also declined (due to no-fault divorce, in part, and due to other reasons as well). This in turn has led to an increase in female poverty.

Thanks for sharing your opinion. I was a bit confused by the first part of your answer. You don't think that women are far less dependent on their husbands simply because such a high percentage have careers of their own and make enough money to have their own financial means? I reailze that it is far easier to live with two incomes. I thnk that both parties suffer financially when they choose to divorce. But a couple of decades ago, women were either not working or had very menial jobs for the most part that would no way support them if they choose to divorce. You don't think this is a major reason for increased divorce??

[Zeta-Flux]

I confess that was my hyperbole, there was flag waving in the Proponent Brief, I did not see much in the Opponent brief.

Big thumbs up.

I too, at times, inject my own hyperbole. Which raises the question: If we accept your claim that using hyperbole shows discomfort in one's own opinion, what does that say about our own arguments? :-)

In fact at times it seemed like the were not addressing each others arguments, and since only the Proponents seemed to be bringing up religion in kind of a defensive gesture to no such argument in the opponents brief, I began thinking that the brief might not be intended to win but to help establish a defensive 1st Amendment shield for the future to protect against intrusions after it becomes the law of the land.

One of the very things that has bothered me the most is that the briefs don't seem to address the arguments the other gave. Part of that can be explained by the fact that (as I understand it) the Proponents present their brief first, the Plaintiffs respond, and then the Proponents respond to that response.

Thus, part of the problem may be that you read them in the wrong order.

I could of course be just imagining that, but the thought clicked with a comment made by someone else in the topic about Who Wrote The Proclamation on Families. The commentor speculated that it was written by the Church's legal department in order to establish theological doctrine for later use in litigation. I had never actually entertained that cynical of a thought before, but having considered it...well it made sense, and it is the only way I have been able to rationalize why the Church would be trying to defend what is clearly an attempt to legislate religious doctrine.

I'd say you should go back to your old thinking. Besides, I know that at least one apostle that signed the document is a brilliant judge in his own right. No need to invoke some legal department.

[Stone holm]

Thanks for sharing your opinion. I was a bit confused by the first part of your answer. You don't think that women are far less dependent on their husbands simply because such a high percentage have careers of their own and make enough money to have their own financial means? I reailze that it is far easier to live with two incomes. I thnk that both parties suffer financially when they choose to divorce. But a couple of decades ago, women were either not working or had very menial jobs for the most part that would no way support them if they choose to divorce. You don't think this is a major reason for increased divorce??

Coming out of Victorian era middle class women were very restricted culturally as to what they could do and still maintain social respect if they worked outside the home, the two dominate ones being education and nursing. Poor women of course worked at whatever menial jobs they could find. WWII of course changed much of this while the men were off killing each other and set in motion the changes we see today. As we switched to an economy which valued brains over brawn we also saw more and more opportunities open up for women. But the world has changed tremendously during my lifetime in that when I was in school there was tremendous gender stereotyping involved to the extent that there were no competitive sport activities available to young women and they were excluded from shop and ag classes. As they began to win early legal and legislative battles and birth control became more widely available, then you began to see them finally break into careers that had formerly been chiefly the domain of men. While divorce cripples people and families financially and it is clearly become the norm rather than the exception, I fail to see how you could credibly argue that it is why women in particular are poorer. Wealth in America has become severely more polarized and the middle class has been decimated, but that has had to do more with trade policy, globalization, and lack of an affordable healthcare system, than our divorce laws. They still have strict divorce laws in many South American countries and the only upshot of that seems to be an aversion to marriage in the first place. A more sensible rationale for the marital crisis in America is the decline in competitiveness of the American middle class business and the family farm. Unfortunately, we have been distracted by focusing on sexual morality issues, which are symptoms rather than the economic causes.

[Stone holm]

Big thumbs up.

I too, at times, inject my own hyperbole. Which raises the question: If we accept your claim that using hyperbole shows discomfort in one's own opinion, what does that say about our own arguments? :-)

One of the very things that has bothered me the most is that the briefs don't seem to address the arguments the other gave. Part of that can be explained by the fact that (as I understand it) the Proponents present their brief first, the Plaintiffs respond, and then the Proponents respond to that response.

Thus, part of the problem may be that you read them in the wrong order.

I read the proponents brief first and it was filled with all types of defensive references to religion, the opponents made few if any references to religion.

I'd say you should go back to your old thinking. Besides, I know that at least one apostle that signed the document is a brilliant judge in his own right. No need to invoke some legal department.

I don't think so, my original thinking was that the Church had gone completely off the rails and was trying to improperly and unconstitutionally legislate religious doctrine, I still feel that having urged forward the activism that triggered Prop 8 from the Conference pulpit was unwise and uninspired but I can at least somewhat justify it in terms of creating a defensive shield. I am afraid that I lost all respect for the Apostle you reference after personally witnessing him make a slurred joke at the pulpit during a Stake Conference out here, my immediate and strong impression was that of an arrogant Southernlike politician who had no place making addresses until he repented.

Big thumbs up.

I too, at times, inject my own hyperbole. Which raises the question: If we accept your claim that using hyperbole shows discomfort in one's own opinion, what does that say about our own arguments? :-)

One of the very things that has bothered me the most is that the briefs don't seem to address the arguments the other gave. Part of that can be explained by the fact that (as I understand it) the Proponents present their brief first, the Plaintiffs respond, and then the Proponents respond to that response.

Thus, part of the problem may be that you read them in the wrong order.

I'd say you should go back to your old thinking. Besides, I know that at least one apostle that signed the document is a brilliant judge in his own right. No need to invoke some legal department.

[noel00]

Some reasons men do not marry: Women like men at least on an income that can provide for both her and any children she has. Men do not often like marrying women who make more money than them.Wages are not always that great for supporting a family. If both parents work by the time you pay out of childcare, second car etc it might not be worthwhile.

I watched some dicussion on Meet the Press this morning. Mention was made the millenuels are not as opposed to gay marriage, even a significant number of evangelicals. So it seems eventually the tide will be such that gay marriage will be the norm.

[Zeta-Flux]

Thanks for sharing your opinion.

I appreciate that you want to minimize the import of my arguments by labeling them "opinion", but I should point out that much of it is simply based on the research that's been done over the last 40+ years. It is conclusive that no-fault divorce laws have had a hugely negative affect on the marriage culture in this country, even accounting for other conflating factors (such as the one you mentioned). Women have suffered for it, and children especially. Even NOM (the National Organization for Women) was opposed to New York passing no-fault divorce laws. For one (of many) examples of scholarly articles, here is the first I found by googling "no-fault divorce affects on children studies". It studies the effects of divorce in states across time, as no-fault divorce laws were passed.

I was a bit confused by the first part of your answer. You don't think that women are far less dependent on their husbands simply because such a high percentage have careers of their own and make enough money to have their own financial means?

Careers do increase independence. I don't disagree with you. But if you think that divorce rates [among many other negative consequences] have increased in the manner they did because women started getting better jobs, and that no-fault divorce takes a back seat to this, I'd like to see the data to support your position.

I reailze that it is far easier to live with two incomes. I thnk that both parties suffer financially when they choose to divorce. But a couple of decades ago, women were either not working or had very menial jobs for the most part that would no way support them if they choose to divorce. You don't think this is a major reason for increased divorce??

No, I don't think this is a major reason for increased divorce. It has had an effect, certainly. But such an affect has been gradual, as the access to better jobs has increased over time. The jump in divorce rates was sudden, in the time-frame of these laws being passed, etc..., etc...

[Zeta-Flux]

Stoneholm,

Somehow your quotation from me got very messed up. But I'll try to respond to your post, if I parsed things right.

I read the proponents brief first and it was filled with all types of defensive references to religion, the opponents made few if any references to religion.

This makes sense for the following reasons. (1) The Proponents' brief came before the Plaintiffs' brief. Thus, the Plaintiffs not mentioning religion has no bearing on whether or not the Proponents should have mentioned it first. (2) The Proponents opening brief is a response not to the Plaintiffs, but to the appellate court, who ruled [very wrongly in my opinion, and almost certainly not on any grounds the Supreme Court will agree with] that Prop. 8 was passed out of religious animus and was irrational. Thus, it makes perfect sense for the Proponents to respond to that ruling.

I don't think so, my original thinking was that the Church had gone completely off the rails and was trying to improperly and unconstitutionally legislate religious doctrine, I still feel that having urged forward the activism that triggered Prop 8 from the Conference pulpit was unwise and uninspired but I can at least somewhat justify it in terms of creating a defensive shield. I am afraid that I lost all respect for the Apostle you reference after personally witnessing him make a slurred joke at the pulpit during a Stake Conference out here, my immediate and strong impression was that of an arrogant Southernlike politician who had no place making addresses until he repented.

My experience with Elder Oaks has not been of the type you portray. I appreciate that you have a different view of events than I do.

[Stone holm]

Stoneholm,

Somehow your quotation from me got very messed up. But I'll try to respond to your post, if I parsed things right.

This makes sense for the following reasons. (1) The Proponents' brief came before the Plaintiffs' brief. Thus, the Plaintiffs not mentioning religion has no bearing on whether or not the Proponents should have mentioned it first. (2) The Proponents opening brief is a response not to the Plaintiffs, but to the appellate court, who ruled [very wrongly in my opinion, and almost certainly not on any grounds the Supreme Court will agree with] that Prop. 8 was passed out of religious animus and was irrational. Thus, it makes perfect sense for the Proponents to respond to that ruling.

My experience with Elder Oaks has not been of the type you portray. I appreciate that you have a different view of events than I do.

Yeah sorry I have not yet figured how you respond to just part of a quote, so will quit trying to do so. Not sure where you are from and, that can make a difference in perceptions on how the whole SSM fight has played out. Let me make one thing clear, I fully support the Church's view of homosexual behavior as sinful, and further do not condone anyone entering into a SSM. Having said that, I am also an ardent believer in religious freedom and separation of Church and State. Under that context I cannot help but believe that our aggressive political agenda in trying to mandate our religious definition of marriage was a mistake, because if we don't want people trying to meddle with us legislatively, then we best not meddle with them. And if we take up the legislative sword to oppress others then we are not in a position to complain when they return the favor. It's called the golden rule. I know that we have tried to play the victim in this, but the argument just doesn't wash. Plus out here in the Northeast where the battles have been fought in the legislatures the Church meetings sometimes devolved into something resembling PACs. Fortunately, our little ward was spared most of it because we are located in a different State than our Stake Center so the political action directives emanating from Salt Lake were out of sync with when the issues were actually hitting the fan in our State. But nevertheless we lost members be cause of all the political activism which was terribly divisive and it will be years if not decades before we can regain momentum amongst educated New Englanders. We have alienated an entire segment of the rising generation who otherwise might have provided valuable leadership to our wards.

[california boy]

I appreciate that you want to minimize the import of my arguments by labeling them "opinion", but I should point out that much of it is simply based on the research that's been done over the last 40+ years. It is conclusive that no-fault divorce laws have had a hugely negative affect on the marriage culture in this country, even accounting for other conflating factors (such as the one you mentioned). Women have suffered for it, and children especially. Even NOM (the National Organization for Women) was opposed to New York passing no-fault divorce laws. For one (of many) examples of scholarly articles, here is the first I found by googling "no-fault divorce affects on children studies". It studies the effects of divorce in states across time, as no-fault divorce laws were passed.

Careers do increase independence. I don't disagree with you. But if you think that divorce rates [among many other negative consequences] have increased in the manner they did because women started getting better jobs, and that no-fault divorce takes a back seat to this, I'd like to see the data to support your position.

No, I don't think this is a major reason for increased divorce. It has had an effect, certainly. But such an affect has been gradual, as the access to better jobs has increased over time. The jump in divorce rates was sudden, in the time-frame of these laws being passed, etc..., etc...

I think you missread the intent of me asking the question. I actually don't have an opinion of no fault divorce laws. That is why I was asking your opinion. I tried to read the article you linked to, but it only showed the first two paragraphs which did not provide any proof of the headline. Perhaps the proof was explained later on in the article. I am open to the idea that no fault divorce has contributed to the rate of divorce, but I think there are other factors as well. I wondered if you felt there were other contributting factors to the increase of divorce. I have no idea what role each factor has played in the increased divorce rate.

[Stone holm]

I think you missread the intent of me asking the question. I actually don't have an opinion of no fault divorce laws. That is why I was asking your opinion. I tried to read the article you linked to, but it only showed the first two paragraphs which did not provide any proof of the headline. Perhaps the proof was explained later on in the article. I am open to the idea that no fault divorce has contributed to the rate of divorce, but I think there are other factors as well. I wondered if you felt there were other contributting factors to the increase of divorce. I have no idea what role each factor has played in the increased divorce rate.

I believe you will find a comment by Pres. Kimball in either his Faith Precedes a Miracle or the Miracle of Forgiveness that basically favors a speedier form of divorce because the protracted divorce proceedings involved in fault only divorce frequently resulted in adultery. Unfortunately, fault based divorce residual sentiments of which still linger in some divorce and custody proceedings merely escalates divorce as war concepts. The problems of divorce are exacerbated by the ongoing adversarial nature of divorce, support and custody proceedings which unfortunately appear to be the norm rather than the exception. Because the formerly married couples frequently behave like apostates of the Church and attack each other bitterly for years after the divorce, i can't help but think that it was an even more deplorable situation while divorce was primarily a fault based system which resulted in people who should have been separated remaining together in an ugly relationship, people commiting perjury in order to end a relationship, married people living separately, or people airing their dirty laundry publicly. The increasing divorce rate is a symptom of other problems that are being left untreated while we focus on sex and sex related issues.

[Zeta-Flux]

I think you missread the intent of me asking the question. I actually don't have an opinion of no fault divorce laws. That is why I was asking your opinion. I tried to read the article you linked to, but it only showed the first two paragraphs which did not provide any proof of the headline. Perhaps the proof was explained later on in the article. I am open to the idea that no fault divorce has contributed to the rate of divorce, but I think there are other factors as well. I wondered if you felt there were other contributting factors to the increase of divorce. I have no idea what role each factor has played in the increased divorce rate.

That's why I pointed you to the literature. The article I linked to was just one of a host of other articles. If you cannot access it or others, you may need to go to your local university which may have access. Learning more about this topic will take work on your part.

There are a lot of things that you may find surprising, and run counter to some of the things people just throw out there. Such as the fact that a significant portion of people are happier in their marriages, and regret getting divorces [which, under no-fault laws, they cannot even contest!]. That the laws led to an nearly 200% increase in divorce. etc...

Yes, there are other causes for raising or lowering divorce rates. But these are usually slow moving, and don't all point in a downward direction.

[Stone holm]

That's why I pointed you to the literature. The article I linked to was just one of a host of other articles. If you cannot access it or others, you may need to go to your local university which may have access. Learning more about this topic will take work on your part.

There are a lot of things that you may find surprising, and run counter to some of the things people just throw out there. Such as the fact that a significant portion of people are happier in their marriages, and regret getting divorces [which, under no-fault laws, they cannot even contest!]. That the laws led to an nearly 200% increase in divorce. etc...

Yes, there are other causes for raising or lowering divorce rates. But these are usually slow moving, and don't all point in a downward direction.

I have yet to witness any example of a situation where under State law there is allowed that one of the parties can put a hold on the divorce in order to attempt reconciliation where that has resulted in anything but a delay. I suppose there may be examples out there I just have never observed during my years of practice.

[Zeta-Flux]

Stone holm,

How many states allow one of the parties to put a divorce on hold in order to attempt reconciliation? How many examples have you witnessed of such processes?

Finally, why do you think that has anything to do with my post? My point wasn't that contesting a divorce leads to reconciliation. [Although, I imagine that it is above the "zero" average you have witnessed.] Rather, my point was that no-fault divorce encodes into law a view of marriage as easily disposable. And, strangely enough, the populace at large begins to view an institution by the rules by which is it run. If the laws say it isn't worth much, people start believing that.

[Zeta-Flux]

Here is an interesting summary of a WSJ editorial, taken from Ed Whelan's site:

If the Supreme Court now reads a right to gay marriage into the Constitution and imposes that definition on all states, it won’t settle the debates Americans are conducting. It will inflame them and ensure they never end, prematurely aborting the give-and-take on contentious moral and social issues the Constitution is designed to encourage. Five Justices—or fewer, if they split into pluralities—could further polarize the body politic and make compromise more difficult.…

The Court has not used the equal protection clause to create a new category of people who need extra legal defenses in three decades, largely because doing so disrupts the ebb and flow of the ordinary political process. Such caution is prudent, especially here. Homosexuals are not disenfranchised like blacks in the mid-20th century, as the very progress of the gay rights movement shows.…

The Court ought to conclude on the merits that marriage as historically understood does have a “rational basis.” This version of the equal protection test properly defers to the deliberative judgment of voters and their elected representatives. Traditional marriage laws may support legitimate goals like promoting intact, reasonably stable wedlock between mothers and fathers for children, or simply stem from a desire to not experiment with a core unit of civil society.

Other states revise marriage arrangements to reflect new values and norms, but neither judgment is irrational. That’s the genius of the U.S. federalist system. It would be an act of judicial imperialism to declare that the meaning of marriage that has prevailed across the Western world for millennia is suddenly unconstitutional because it is “irrational” and force the new concept on everyone.…

[L]iberals and some libertarians argue [that the Defense of Marriage Act] is an affront to federalism. We disagree.

Under their police powers, the states govern domestic arrangements—marriage, divorce, child custody, etc.—and for two centuries the federal government borrowed the state definitions. This was unsettled in 1993 when the Hawaii supreme court legalized gay marriage, confronting Washington and the states with the possibility of many competing interpretations.

In this unprecedented context, refusing to take a position was itself taking a position, so Congress decided to clarify a uniform national standard for the purposes of the 1,100 federal laws that rely on marriage. For example, Doma’s Section 3 defines who is a spouse for Social Security benefits and which couples can file joint tax returns.

Doma doesn’t usurp state prerogatives or outlaw experimentation, or else those nine states could not have legalized gay marriage since Doma passed. In the Constitution’s system of dual federal-state sovereignty, each coequal sovereign has the power to define marriage for its own sphere.…

A same-sex marriage ukase would achieve that rare thing, harming advocates and opponents and everyone in between. Since marriage is more than an intimate relationship but an expression of legitimacy in the eyes of society, Supreme Court-mandated marriages would confer fewer benefits on gays and lesbians than would popular acceptance. Meanwhile, the Court would tell millions of Americans that their deep moral convictions are artifacts of invidious bigotry.

The Supreme Court does not have a good record legislating cultural change. A ruling on behalf of same-sex marriage could enshrine

Hollingsworth

and

Windsor

with

Roe v. Wade

, the 1973 abortion decision that imposed a judicial diktat even as laws in many states were liberalizing. Instead of finding a rough consensus inside the political mainstream, abortion became an all-or-nothing combat that still rages.

The same-sex marriage cases are an opportunity for the Court to show it has learned from that mistake. Justice Kennedy and his colleagues can incite another Forty Years War or they can return their social jurisprudence to the measured, incremental approaches the Constitution intends.

[Stone holm]

Here is an interesting summary of a WSJ editorial, taken from Ed Whelan's site:

Was that article in reference to the DOMA case or the Prop 8 case? or both? As I understand the argument being made by Obama, they would not argue that gay marriage has to be validated in every State, but in States where they have granted all the rights except the right to say you are married then the law should be struck down. So that would result in a ruling against Prop 8, but not necessarily against laws in States where the State has not granted adoption or other rights. The problem they have in Prop 8 is that the legislature has already shut the door on all the non-religious arguments. So they do have an exit there if they choose to take it which strikes down Prop 8, but does not create a new category of protected people. Personally, I think that Prop 8 should have been more strongly argued as a violation of the establishment clause. I have not read the DOMA briefs. When DOMA was first passed, I wondered how the Constitution empowered the Federal Congress to decide which State laws had to be accorded full faith and credit under the Constitution -- full faith and credit seems like a self-executing provision that the Congress has no power to decide -- but I do not understand that anyone has made that argument. The DOMA case presents slightly different issues than the Prop 8 case.

[Zeta-Flux]

Was that article in reference to the DOMA case or the Prop 8 case? or both?

My answer to you is the same as to CB. Go read the article. :-p

As I understand the argument being made by Obama, they would not argue that gay marriage has to be validated in every State, but in States where they have granted all the rights except the right to say you are married then the law should be struck down. So that would result in a ruling against Prop 8, but not necessarily against laws in States where the State has not granted adoption or other rights. The problem they have in Prop 8 is that the legislature has already shut the door on all the non-religious arguments. So they do have an exit there if they choose to take it which strikes down Prop 8, but does not create a new category of protected people.

I disagree that the door has been shut on non-religious arguments. There are numerous rational arguments, presented in the briefs, such as "proceeding with caution" to give one of many examples.

Personally, I think that Prop 8 should have been more strongly argued as a violation of the establishment clause.

You think Prop 8 is the establishment of a religion?

I don't know your background, so forgive me if you already know this, but the establishment clause says, essentially, that congress (and later, by extension to the states) cannot make a law respecting an establishment of religion. Prop 8 does not establish a religion, even if we grant your questionable assumption that it does establish in law a religious belief. There is a big reason nobody has argued that it establishes a religion -- such a claim would quickly fail.

I have not read the DOMA briefs. When DOMA was first passed, I wondered how the Constitution empowered the Federal Congress to decide which State laws had to be accorded full faith and credit under the Constitution -- full faith and credit seems like a self-executing provision that the Congress has no power to decide -- but I do not understand that anyone has made that argument. The DOMA case presents slightly different issues than the Prop 8 case.

It is my impression that the issue in this specific case is Section 3 of DOMA, which does not conflict with full faith and credit. The rulings against DOMA under review have been that its Section 3 is unconstitutional. The rulings have been all over the board, saying that it violates the spending clause, the tenth amendment, didn't pass heightened scrutiny (labeling lesbians and gays a protected class), or intermediate scrutiny, or even rational basis test. It will be interesting to see how the Supreme Court rules.

There may be issues where DOMA conflicts with the full faith and credit clause, and those may eventually reach the Supreme Court. But they are not currently the issue being considered.

[Stone holm]

My answer to you is the same as to CB. Go read the article. :-p

I disagree that the door has been shut on non-religious arguments. There are numerous rational arguments, presented in the briefs, such as "proceeding with caution" to give one of many examples.

You think Prop 8 is the establishment of a religion?

I don't know your background, so forgive me if you already know this, but the establishment clause says, essentially, that congress (and later, by extension to the states) cannot make a law respecting an establishment of religion. Prop 8 does not establish a religion, even if we grant your questionable assumption that it does establish in law a religious belief. There is a big reason nobody has argued that it establishes a religion -- such a claim would quickly fail.

It is my impression that the issue in this specific case is Section 3 of DOMA, which does not conflict with full faith and credit. The rulings against DOMA under review have been that its Section 3 is unconstitutional. The rulings have been all over the board, saying that it violates the spending clause, the tenth amendment, didn't pass heightened scrutiny (labeling lesbians and gays a protected class), or intermediate scrutiny, or even rational basis test. It will be interesting to see how the Supreme Court rules.

There may be issues where DOMA conflicts with the full faith and credit clause, and those may eventually reach the Supreme Court. But they are not currently the issue being considered.

Well the proponents brief definitely was concerned about the establishment clause since they dedicated a subsection to it. Since it is a State law, it comes in through the 14th Amendment. The opponents, however, appear to have approached it as primarily an equal protection issue. I suspect that was because their motivating cause was to get a protected class ruling rather than a more limited establishment clause ruling. Prop 8 was particularly vulnerable to an establishment clause attack due to it being based on primarily a religious motivated definition. The secular arguments had been foreclosed. The one which they primarily relied on, namely procreation was undercut because marriage is specifically authorized for heterosexual couples beyond the age of conception. Child rearing was foreclosed because gay adoption is already permitted, and so forth...proceeding cautiously is not a substantive argument, it just goes to the weight to be accorded arguments.

[Stone holm]

Not sure what my background has to do with any of this, but yes I know what the establishment cause says and how it is applied to the States via the 14th Amendment, do you know what "establishment of religion" means?

[california boy]

What happend in the court room today. What the defendants argued.

BY Ari Ezra Waldman

As the plaintiffs, attorneys, and assorted celebrities filed into the grandiose Supreme Court building at One First Street, you could get the feeling -- even from afar -- that something special was happening today. Paul Katami and Jeff Zarrillo walked in holding hands, as did Kris Perry and Sandy Stier. Ted Olson looked prepared and at ease, exactly what you would expect from a man who has argued more cases in front of the Supreme Court than he probably cares to count. In short, the day was momentous. Would the argument be, as well?

In a word, yes. I will let the prognosticators prognosticate, but what I would like to offer you is a legal perspective. The argument exceeded my expectations in terms of the questions the justices posed to counsel on both sides and what those questions might say about the justices' concerns. But, let's be clear: While the media have already taken to Twitter and their own websites to predict that this or that question from Justice Kennedy means that he will make this or that decision, those predictions often fall far south of meaningful. Any lawyer who has argued before a "hot bench" -- namely, active questioners -- knows that sometimes, especially in politically charged environments, judges of all stripes challenge both sides. In fact, a study of decades of Supreme Court arguments based on the number of hostile questions a given justice asked a given party showed no statistically significant correlation with that justice's ultimate decision in the case (notably, there was a statistically significant relationship found between softball questions and a favorable decision).

The actual hearing can tell us a few things, like what is on the justices' minds. Was Justice Kennedy mostly concerned about standing, or was he asking a lot of questions about equal protection? If a justice only asks about one issue, that's the one he or she is focused on. Did the Chief Justice ignore the scrutiny question and focus on how the case is really only about the word "marriage"? If so, that might only mean that he has no questions on staning, that he already made up his mind, and not necessarily that he thinks the Prop 8 proponents actually had standing.

With that in mind, follow me for the first of two posts offering a chronological summary and analysis of some of the more important highlights of the argument. When we all have had time to sit back and reflect, we will post a thematic analysis around the substantive questions in this case: standing, scrutiny, and equal protection.

Ninth Circuit's standing argument: that Proponents need not show their own direct injury, just injury to the state and a state right to step into the shoes of the California government.

The Chief Justice mercilessly put an end to this, encouraging Mr. Cooper to move on to the merits. Then came a question from Kennedy and then one from Ginsburg. Mr. Cooper was not only unable to make his argument, but struggled to return to his outline upon finishing his generally evasive answers.

Don't read too much into that, though. The Chief Justice is playing a managerial, gate-keeping role here (at least, up to this point, and we're only about 10 minutes in). Anyone who argues before appellate courts has to expect to be interrupted; the key is to both answer the question directly and steer the conversation back to your points. That more than half the bench didn't let Mr. Cooper get a word of his own in before interrupting him is not so much evidence that they don't agree with him as evidence that they didn't like his answers.

Mr. Cooper brought up the Baker v. Nelson canard -- namely, that because the Court said in 1971 than there was "no federal question" in Minnesota denying a marriage license to a gay couple, this case cannot proceed. Justice Ginsburg had a few words on that, reminding Mr. Cooper than 1971 was over 40 years ago, before the Court said that gender-based classifications (what Justice Ginsburg spent her career on) get heightened scrutiny and long before gays had a constitutionally protected right to be who they are.

During this line of questioning, Justice Kennedy asks Mr. Cooper if a gay marriage ban could be a gender-based classification. That argument isn't new: Alice can marry Bob, but Alice cannot marry Carrie. Alice could marry Carrie if Alice were a man. So, a ban on gay marriage is discrimination on the basis of sex. That argument has not been very successful in the federal courts, but I'm more interested in how Justice Kennedy asked the question. He said, "It's a difficult question that I've been trying to wrestle with," and I believe him. Justice Kennedy, like the Chief Justice, is a thoughtful conservative scholar. He has shown favor toward gay rights cases in the past, but alongside his generation, he is struggling with society advancing and changing. Like Rob Portman, I think he is indeed struggling with this question, and the fact that he felt the need to express append this rather emotional postscript to his question is telling.

A few minutes later, Justice Sotomayor talks scrutiny, without using the words. She asks Mr. Cooper why the Constitution shouldn't treat gay people as a protected class. He responds by saying that the "class" of gays is amorphous, with homosexuality not immutable.

But it is Justice Kagan who gets Mr. Cooper to admit the central illogic of his argument. He says that allowing gays to marry does not serve the state interest in encouraging responsible procreation. Justice Kagan realizes Mr. Cooper is missing the point: "Is there any reason that you have for excluding them? In other words, you're saying, well, if we allow same-sex couples to marry, it doesn't serve the State's interest. But do you go further and say that it harms any State interest?" Mr. Cooper says yes because that would be redefining marriage. The end result of this less-then-one-minute exchange is that Mr. Cooper admitted that Prop 8 is not rationally connected to the legitimate state interest of encouraging heterosexuals to marry. He merely said gay marriage doesn't advance that particular interest, and the only so-called harm is this amorphous, imaginary concern about "redefining" marriage. Justice Scalia chimed in to give his "harms," at which point Justice Ginsburg shot back at him (as if ignoring Mr. Cooper). This is where this case will be won.

Justice Breyer gets the gold star for pointing out that infertile heterosexual couples marry all the time. The 52-year-old Justice Kagan, who isn't married and has no children, got a laugh when she asked about all those couples that are marrying after 55 and are producing "very few" children. And, the matriarch of a large family, Justice Ginsburg, raised the salient point about a case called Turner v. Safley, which guaranteed inmates the right to marry: they can marry she said, even when incarcerated and unable to have children. Mr. Cooper had the nerve to respond that there are very few, if any, cases where both persons in a heterosexual marriage are infertile because men can father children at almost any age. You could hear an audible groan from the audience at that one.</p>

[Zeta-Flux]

I was waiting for someone to post such an article. I knew it wouldn't be long.

It doesn't surprise me that Breyer and Kagan don't understand the difference between promoting an institution which encourages responsible procreation, and actual procreation. Fortunately, from other sources I've read on the internet, it isn't nearly as one-sided as that author made it out to be. I'll probably listen to the transcript later, but so far I'm optimistic.

[thesometimesaint]

While I personally believe homosexual activity is a sin. I can find no rational basis to oppose it on the basis of law.

Actual procreation is between you and your spouse. The cultural institutions that have grownup around marriage is another matter.

[Stone holm]

Stone holm,

How many states allow one of the parties to put a divorce on hold in order to attempt reconciliation? How many examples have you witnessed of such processes?

Finally, why do you think that has anything to do with my post? My point wasn't that contesting a divorce leads to reconciliation. [Although, I imagine that it is above the "zero" average you have witnessed.] Rather, my point was that no-fault divorce encodes into law a view of marriage as easily disposable. And, strangely enough, the populace at large begins to view an institution by the rules by which is it run. If the laws say it isn't worth much, people start believing that.

Both States that I have practiced in make such an allowance, I believe, but do not know, that it is a fairly common provision. You trigger it normally by one party asserting that the relationship is not irreconcilable. I don't know how many times I have seen it over the last 40 some years of practice -- but have never witnessed it to have any effect. Forcing people to stay in a marriage is to me unconscionable and slightly barbaric, but many Catholic countries still prohibit divorce except in a few limited cases.

[Stone holm]

While I personally believe homosexual activity is a sin. I can find no rational basis to oppose it on the basis of law.

Actual procreation is between you and your spouse. The cultural institutions that have grownup around marriage is another matter.

I agree. Not sure about the definition of "procreation", but it definitely takes a man and a woman biologically. Marriage is peculiar in it is a religious ordinance and also a secular status -- unlike most things, we didn't untangle the two when we established a secular state and now we are paying the price in civil discord.

[california boy]

What the Plaintiffs argued before the Supreme Court today.

BY Ari Ezra Waldman

Mr. Olson got a bit further into his opening remarks before being interrupted by Chief Justice Roberts about standing. So, here, we already see that a given question or a tendency to interrupt does not foreshadow anything. However, I will say that both times the Chief Justice asked a standing question, it was tilted toward showing skepticism: to Mr. Cooper, he asked how Proponents are any different than random citizens, who never have standing; to Mr. Olson, he asked how Proponents could ever have standing when the State of California declined to appeal at all. Neither attorney said anything new or that wasn't in the briefs. I would color the Chief Justice skeptical on standing. But, don't color the entire Court in the same shade. Justice Kennedy jumped in first with a few questions critical of Mr. Olson's no-standing view and repeated the argument from the California Supreme Court: without the right to defend the initiative, the right to "propose and enact" an intiative or referendum is meaningless. Justice Alito was there with him with a follow up. Justice Sotomayor was also worried about what happens when state officials simply don't like a law and stop defending it; "how do you get the law defended in that situation?" Mr. Olson had no answer, but returned to his talking points on direct injury.

Justice Sotomayor's questioning is a perfect example of why we cannot read too much into the tea leaves of oral argument. She asked pointed, sharp standing questions to each attorney: demanding a clear statement of injury from Mr. Cooper (which he could not provide) and a clear answer on state nullification from Mr. Olson (which he couldn't provide, either).

When he moved to the merits, Mr. Olson's next move was a breath of fresh air. He turned to the broadest argument we can make for a national right to marry: that any ban on gays marrying violates due process. While this shouldn't surprise us -- this argument was not only front-and-center in his brief, but also invited by the Court when it crafted its broad Questions Presented -- it reminded me of the great potential of this case and Mr. Olson's confidence in his position.

As expected, the argument drew forceful responses: a nuanced one from the Chief Justice and an angry, bitter one from Justice Scalia. The Chief Justice made the point that bans on gays marrying need not only be seen as antigay discrimination. It is undisputed that marriage as an institution developed without gays; keeping it that way is not necessarily discrimination. Aside from ignoring pre-Christian "unions" in Greece and Rome and focusing only on the development of marriage in a Judeo-Christian tradition, what the Chief Justice misses with that argument is the discriminatory and silencing role of the closet. Countless institutions developed without gay people because gays were shoved underground and forced to hide in order to survive. Plus, that a practice has always existed does not mean it isn't discriminatory.

Justice Scalia glommed on to that interesting -- but ultimately unsatisfying argument -- by demanding, in a tone typical of the archconservative justice, that Mr. Olson tell him "exactly when" it became unconstitutional to ban gays from marrying. After all, there was no gay marriage right in 1791 (the year we ratified the Bill of Rights).

Mr. Olson showed his confidence, experience, and his standing at the Court by doing something I tell my students and young attorneys never to do: answer a question with a question. His argument was amazing: If that's your concern, when did it become unconstitutional to ban interracial marriage? Justice Scalia got testy, demanding an answer. Mr. Olson said he couldn't point to a date, but that wasn't the point: No court requires that kind of precision. Mr. Olson could have gone further and argued that this kind of discrimination is always anathematic to American principles of liberty and equality; that it took a while for us to realize it is our fault, not a gay person's burden to bear.

What was happening here was Justice Scalia hyping his view that the Constitution is "dead, dead, dead," and was egging Mr. Olson to say that the Constitution should change as times and social mores change. Strategically, Mr. Olson declined to take the bait. Justice Scalia bloviated, "How am I supposed to decide a case then, if you can't give a date when the Constitution changes?"

It was almost as if Mr. Olson was not going to bother with such nonsense. He responded by noting that when the Court decided that separate-but-equal schools were unconstitutional in Brown v. Board of Education, for example, no one ever required something as ridiculous as a date the Constitution changed. And that's because the Constitution isn't changing. Just because society's conceptions of freedom and equality a century ago were not our conceptions of freedom and equality does not mean that the Constitution has to stand for the versions of freedom and equality that prevailed when we had slaves. But, there will be no persuading Justice Scalia on this point. In fact, he even admitted that he was demanding something unprecedented: "I know," he said, "I know." The Court has never required anything of the sort. "That's exactly the problem." It's clear that Justice Scalia wants to upend centuries of rights jurisprudence. There's very little rational argument can do about that now.

The Chief Justice and Justice Kennedy then asked questions about the "odd rationale" (Kennedy's words) the Ninth Circuit gave for rejecting Prop 8 -- namely, that by taking away a right already given, Prop 8 violated the principle of Romer v. Evans. To the Chief Justice, Mr. Olson reiterated his fundamental rights argument, but conceded that there were several, narrower ways the Court could decide the case. To Justice Kennedy, Mr. Olson declined to be overtly critical of a lower court opinion that came out on his side, but you could tell that Mr. Olson was positioning himself at the boundary and allowing the Court a lot of leeway to strike down Prop 8 without, as Justice Kennedy noted, going into uncharted waters and finding a cliff at the end of the line.

It was Justice Sotomayor who brought up the slippery slope argument about polygamy: If marriage is a fundamental right, Mr. Olson, can we ever have legitimate restrictions on it? Yes, he said. Prop 8 is part marriage restriction, part status discrimination; it targets gays as a class. A restriction on polygamy would target conduct, not a class of persons traditionally discriminated against.

The take away from this is that having chosen to make the broadest argument about any ban on the freedom to marry violating due process, Mr. Olson had to spend more than half of his time at oral argument swatting down skeptical questions from both wings of the Court about the very breadth of his proposal. But, don't dismay. Posing the broad argument was likely a strategic decision that allows a more moderate approach to seem like a reasonable compromise.