Plantiff Files Prop 8 Brief For Supreme Court

[california boy]

What the Solicitor General argues before the Supreme Court today and an analysis of the session.

Don Verrilli, President Obama's Solicitor General, makes the President's "8 State Solution" Argument.

When a state like California grants gays the right to do everything, including adopt children or have a family through a surrogate, then Mr. Cooper's argument that the state's interest in heterosexual couples' procreative ability has no "legs." Several justices noted the irony of the '8 State Solution' -- it says that the most pro-gay states are violating the rights of gays, but it leaves out the states that don't allow gays any rights. Mr. Verrilli answered that question by agreeing with my argument that the 8 State Solution was inherently illogical as a matter of law: It's not just the pro-gay states; the anti-gay states will also have trouble justifying their bans on gays using the word "marriage." This case, however, is about a unique state.

Mr. Verrilli was the one who had to deal with the Chief Justice's and Justice Alito's suggestions that this was all moving too fast. Gay marriage is new, Justice Alito said, preventing us from actually seeing its effects. The Chief Justice's voice actually grew louder on the audio when he challenged the demand for a nationwide right to marry without letting the public debate continue to work it out.

To use a baseball analogy, it seems like Mr. Olson and Mr. Verrilli were playing different roles on a team. If it's the bottom of the ninth inning and you have a man on second and need one run to tie and two runs to win, Mr. Olson was trying to hit a "walk off" home run so the game would be over and everyone could go home. Mr. Verrilli was aiming to just get the runner home, setting up extra innings where some of his heavy-hitting teammates could end the game in a little while. Although Mr. Verrilli faced some questions about a broad holding, he was hitting back the justices' skepticism with viable alternative options.

Mr. Cooper gets another shot (a rebuttal), but Justice Ginsburg has his number.

In an extra-long 10 minute rebuttal (extended because the justices kept Mr. Olson up there a bit too long), Mr. Cooper tried to capitalize on several justices' concerns about a nation-wide right to marry by arguing that an anti-Prop 8 decision could never be narrowed to just California. Justice Ginsburg snapped back in only the way she can, with a lesson about how Loving v. Virginia ultimately came about after several, more limited decisions that paved the way for a national right. Mr. Cooper's only response was the procreative argument about which several conservative justices had already expressed skepticism: that the government has no interest in banning interracial marriage, but it does have an interest in banning gays from marriage because gay people cannot advance the govermental interest in encouraging responsible procreation. I think the 40,000 children of gay parents in California would disagree.

Perhaps the most remarkable thing about this hearing came at the end, where Mr. Cooper was the one who almost conceded that the freedom to marry is coming, sooner or later. His plea, his only plea, was for the Court to stay out of it. The Court need not even worry about Mssrs. Katami and Zarrillo or Ms. Stier and Ms. Perry because the freedom to marry "will be coming back to California." Ostensibly referring to public opinion polls, Mr. Cooper has the nerve to ask the Court to continue injuring even the plaintiffs (let alone the rest of California) because gay persons' marriages are things everyone should vote on. The justices did not have time to question this line of argument, but it strikes me as the height of Mr. Cooper's and his movement's dismissive heartlessness: these people don't need their rights guaranteed because eventually, my liberal kids are going to give them their rights.

Conclusions

For those willing to make predictions from oral argument alone, look at the following things we learned:

• 
  Several members of the Court are concerned about standing, asking questions skeptical of proponents' standing to both sides.
  
• 
  Justice Kennedy may have given us his version of "I'm evolving every day on this issue" when he said that this case is raising issues that he "has been struggling with." He is obviously keenly aware of his role as the so-called "swing" justice and does not want to tip his hat, but his words tap into the journey our entire country is taking together.
  
• 
  Mr. Cooper admitted the emptiness of his case and the lack of any real connection between Prop 8 and a state interest.
  
• 
  Some of the justices asked skeptical questions about a broad ruling, but that does not mean Prop 8 will survive. If anything, it means that Mr. Olson's strategy worked.
  

Hollingsworth may, therefore, end Prop 8, either on standing or the merits. Either way, everything about today's argument suggests that Mr. Cooper's conclusion is wrong. No one should have the right to vote on the legitimacy of my love. And no one has the right to hand me my rights like beneficences from a king. That is why the American Foundation for Equal Rights (AFER) and its attorneys, Ted Olson and David Boies, took us to the Supreme Court. Today, our lawyers made us proud by revealing the basic infermity of Prop 8: it singles out gays, discriminates against them, and it does so for no reason.

[Zeta-Flux]

CB,

I just took the time to listen to all 80 minutes of arguments. I paid particular attention to some of the impressions given by Ari Ezra Waldman in the article you originally posted. Let's just say I am very pleased with how the arguments went, and had the opposite impression on a number of instances.

I think Ari completely misstates the situation which occurred between Mr. Olsen and Justice Scalia. It is true that Mr. Olsen answered with a question. Justice Scalia quickly answered that question, calmly, and then repressed his point, which is that Mr. Olsen could not apparently point to anything in the constitution itself which made it illegal. [scalia did get a bit testy a little later.] Mr. Olsen countered that it became illegal as our cultural awareness developed. Mr. Olsen would have been better served to actually cite the specific constitutional amendment he feels that Prop. 8 contradicts. Instead, he sounded very heated and hard pressed.

But I did get from him the sense that he cares deeply about this issue, which also may be why he sounded so loud. However, he should have cited the equal protection clause rather than presenting a sort of "living constitution" theory of why it is now unconstitutional.

Ari does not mention that Don Verilli was drilled by multiple justices. His position was repeatedly shown to by hypocritical (just as Pres. Obama's is--be all in, or don't be in at all). Verilli kept saying "my next point is an important one" but it never was.

The biggest thing that Ari gets wrong is that Mr. Cooper "admitted the emptiness of his case". Not at all. He presented his case well, and made the point that even 55 year old married couples serve the interest of marriage, as the man is still able to father children (if he weren't in his marriage), etc... Now we get to wait and see what happens.

[Zeta-Flux]

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

So, if I say to you "I'm worried that SSM will lead to further failures in the marriage culture of this society, just as no-fault divorce did. And there seems to be some data in recent studies making me want to move cautiously" you would find this irrational?

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

Yes and no. Society at large has an enormous interest in the welfare if children. When the cultural institutions which grow up around marriage start damaging children, or at the very least are untested and have a great potential to damage them, it is not irrational to proceed cautiously.

[Stone holm]

This is amazing, except there is one cardinal rule in Appellate practice -- namely, trying to determine where a court is going based on oral argumnents is like not likely to result in an accurate diagnosis.

http://thinkprogress.org/justice/2013/03/26/1776641/the-justices-are-not-ready-to-bring-marriage-equality-to-alabama-and-they-want-prop-8-to-go-away/

[Zeta-Flux]

Hadley Arkes read my mind, and says much of the same as I did.

[Stone holm]

Proposition 8 in California set marriage to be strictly between one man / one woman. The California supreme court had previously created a "right" for people to marry someone of the same sex, so the ooponents of Prop 8 are attempting to argue that the people of California are violating a constitutionally protected right. Now the US Supreme Court will decide if Prop 8 can stand, or must be declared unconsititutional.

At least that is my understanding.

Well just finished reading a transcript of the oral arguments, it has always amazed me that anything coherent can be argued before that Court since rarely is anyone allowed to complete a sentence. One thing, however, seemed to be clear. The argument used in the Vermont Supreme Court case to get a ruling that the State had to allow some form of union, wasn't working quite as well. Normally, you can't argue as a justification something that the legislature has already removed as a justification. But when General Virilli tried to make the argument that all of the secular reasons had been foreclosed because California had undercut or foreclosed them with legislation, neither wing of the Court seemed to be letting him go there. So it didn't sound like they were going to take Obama's gesture towards a compromise exit door. But there seems to be speculation that they might just dismiss the appeal as being improvidently granted which will in effect have the same effect, namely Prop 8 will remain tossed out by the Circuit Court, but we will have no Supreme Court proclamation on the definition of marriage. Somehow, I don't think that is what they are going to do. Of the three attorneys, it appeared to me that the Opponents counsel did the best job in responding to the questions. The Proponents counsel got boxed into several concessions, and the opposing Amici counsel got hammered. This is going to be a close case -- it may be so close that they decide to bail and take the standing question as an exit door as the liberals are afraid that Obama's exit door could backfire as it might cause some States not to grant gays the full repertoire of rights.

[Daniel2]

Here's an interesting article on how the LDS church's involvement on this issue has evolved:

http://www.reuters.com/article/2013/03/25/us-usa-gaymarriage-idUSBRE92O05G20130325

Daniel2

[california boy]

The thing I like most about having this issue go to the Supreme Court is that some of the arguments that have been used have to be defended in the light of day with legal answers not just speculation.

So, if I say to you "I'm worried that SSM will lead to further failures in the marriage culture of this society, just as no-fault divorce did. And there seems to be some data in recent studies making me want to move cautiously" you would find this irrational?

Here is how that question went today in the Supreme Court.

Similarly, when Cooper argued that same-sex marriages could somehow undermine opposite-sex marriages, Kagan asked him to explain the “cause and effect” behind this point. When Cooper fumbled the question, Kennedy pounced, asking if Cooper was “conceding the point” that same-sex couples are not a threat to other people’s marriages. Cooper was left to meekly assert that it is “impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be.”

Yes and no. Society at large has an enormous interest in the welfare if children. When the cultural institutions which grow up around marriage start damaging children, or at the very least are untested and have a great potential to damage them, it is not irrational to proceed cautiously.

And here is the question Kennedy asked about your point, How would you answer him?

Kennedy at one point admitted uncertainty about whether there is sufficient evidence examining the effect of marriage equality on society, but he then pivoted to note that the nearly 40,000 children raised by gay parents in California suffer “immediate legal injury” because of Prop 8.

[Zeta-Flux]

CB,

Here is how that question went today in the Supreme Court.

No, that is how one biased observer reported it. Cooper didn't "fumble". Kennedy didn't "pounce". Cooper wasn't "meek". He simply asserted the truth: we don't know how this change will affect marriage, so it is rational to proceed with caution.

And, no, none of the judges specifically answered my question (yet). I'm more interested in TheSometimesSaint's answer.

And here is the question Kennedy asked about your point, How would you answer him?

Simply. First, while these children may (and there is no evidence that they do) experience hardship from the fact their adoptive parents only have civil unions, so to then would children of polygamists if not more so. Does their "legal injury" authorize polygamy? Second, if these children are being injured by their parent's relationship, why does this necessarily put a black dot on Prop. 8 rather than a black dot on the civil unions themselves? From a judicial position, that would merely say that the civil union laws lead to legal injury. It wouldn't say that Prop. 8 is unconstitutional. Rather, California would have to decide whether to get rid of civil unions or get rid of Prop. 8. We all know what would then happen- they'd get rid of Prop. 8.

[Stone holm]

CB,

No, that is how one biased observer reported it. Cooper didn't "fumble". Kennedy didn't "pounce". Cooper wasn't "meek". He simply asserted the truth: we don't know how this change will affect marriage, so it is rational to proceed with caution.

And, no, none of the judges specifically answered my question (yet). I'm more interested in TheSometimesSaint's answer.

Simply. First, while these children may (and there is no evidence that they do) experience hardship from the fact their adoptive parents only have civil unions, so to then would children of polygamists if not more so. Does their "legal injury" authorize polygamy? Second, if these children are being injured by their parent's relationship, why does this necessarily put a black dot on Prop. 8 rather than a black dot on the civil unions themselves? From a judicial position, that would merely say that the civil union laws lead to legal injury. It wouldn't say that Prop. 8 is unconstitutional. Rather, California would have to decide whether to get rid of civil unions or get rid of Prop. 8. We all know what would then happen- they'd get rid of Prop. 8.

They touched on polygamy briefly and stated there were unforeclosed secular foundations there which had been foreclosed in California, so I don't think that a victory for the opponents here opens the door for polygamists.

[Zeta-Flux]

They touched on polygamy briefly and stated there were unforeclosed secular foundations there which had been foreclosed in California, so I don't think that a victory for the opponents here opens the door for polygamists.

By "they" you mean the responders. I don't know how their invented difference (banning behavior not a class) will sit with the justices. Especially since previously that same argument had been used against homosexual behavior, and they rejected it...

[Stone holm]

Ouch!

http://www.upworthy.com/a-supreme-court-justice-takes-down-an-anti-gay-marriage-argument-in-1-minute?c=ufb1

[Stone holm]

By "they" you mean the responders. I don't know how their invented difference (banning behavior not a class) will sit with the justices. Especially since previously that same argument had been used against homosexual behavior, and they rejected it...

Don't recall welfare and tax fraud, and abuse of women being argued against homosexual behavior was it? In what context?

[Stone holm]

Yeah, somebody else came to the conclusion that we could wind up with two messy opinions that don't resolve the crux of the issue

http://news.yahoo.com/blogs/ticket/kennedy-decide-gay-marriage-cases-201558362--election.html

[california boy]

One question stood out for me, though.

Justice Kagan asked Charles Cooper, the counsel charged with defending Proposition 8′s gay marriage ban, “what harm you see happening … what harm to the institution of marriage or to opposite-sex couples” if gays and lesbians are allowed to marry?

A pretty simple question that cuts to the heart of things. Cooper had to be expecting it. He’s had three years to come up with a better answer than the infamous response he gave at the first trial, three years ago: A long silence followed by, “I don’t know.”

Apparently he still doesn’t.

“Is there any reason you have for excluding them?” Kagan went on. “Could you explain a little bit, just because I did not pick this up from your brief. How does the cause and effect work?”

Cooper parried that this wasn’t the question before the court — his side only had to show that allowing gay marriage would not advance the interests of marriage as a state institution.

“Well then,” jumped in Justice Kennedy, sounding like a man who’d rather be golfing, “are you conceding the point that there is no harm or denigration to traditional opposite-sex couples?”

“No, your Honor, no,” Cooper answered. But when Kennedy pressed, all Cooper came up with was that “redefining marriage will have real-world consequences” and that “it is impossible for anyone to foresee the future accurately enough to know what those real-world consequences would be. And among those real-world consequences, Your Honor, we would suggest are adverse consequences.”

Scalia was pissed. All he needed from this guy were a few crumbs on the record to rule with a clear conscience against the gays. No one’s doubting how he’ll rule; he recently compared homosexual conduct to murder. But a judge can’t do it alone. He needs an attorney to provide him with ammo. “I don’t know why you don’t mention some concrete things,” brayed Scalia. (Like I did about my dead superstud bud Strom.)

But Cooper couldn’t seem to come up with any.

Even James, my 7-year-old son, put down his Beyblades long enough to pipe up, “Seriously, this is the best they’ve got? Where did this guy go to law school, the Internet? Judges need facts, dude. Come on! All you’ve got is ‘it’s impossible for anyone to foresee the future… but we would suggest there are adverse consequences’???”

[Stone holm]

One question stood out for me, though.

Well I suppose they could have made an evolutionist's argument that this definition has evolved overtime in Western culture which has kicked butt militarily and technologically all other cultures and therefore we meddle with it at our peril because we might wind up being more concerned about proper care of the earth and say achieving peace, course not sure you would see that overtly truthful of an argument coming from the mouth of a social conservative attorney, so you have the classic social conservative argument instead, namely change is bad and we are scared of the future.

[california boy]

I am not sure why he could not come up with any reason why gay marriage would be harmful. Here are five he should have considered using.

1. Lower property values. When I moved onto my street 18 years ago, my new neighbors were ecstatic. Nothing guarantees curb appeal like a single gay man. Within weeks I’d ripped out the untended cactus garden and replaced it with a lush, green carpet of clover-like dichondra. I put in a slate front walkway leading to a covered entryway and replaced the Home Depot front door with one I designed myself and had custom built from a solid piece of Honduran mahogany. The matching bench I angled just so under those weeping branches of the Chinese elm I had landscapers put in made for a picturesque, peaceful spot to sit and listen to the fountain gurgling under a trellis dripping with bougainvillea. I even had outdoor lighting put in so that none of this curb appeal went dark at night. Then I met Kelly, we had children, and got married (in that order; I’m Southern). Five years later our curb has no appeal. The dichondra’s dead. Carpooling kids means the fountain no longer gurgles because in two years I haven’t found time to replace the motor. The bench has dry rot and front door hasn’t been restained or sealed since my daughter swallowed her baby teeth. The bulbs in the outdoor lighting burned out long ago, which is a blessing, given the fact that all they’d be illuminating is a barren patch of weeds that make that untended cactus garden look like Eden. The neighbors who once threw our wedding? They don’t even smile anymore.

2. Wrecked Fantasies for Millions of Straight Men. I’m pretty sure that in those states where it’s become law, marriage equality means girl-on-girl fantasies are history for straight guys. How could they not be? Where’s the hot in two women together when there’s a pretty solid chance they’re married? To each other. I’m no expert here; I’ve never understood the appeal for straight men of two women going at it. But I can’t imagine anything bringing all that girl-squared fun to a grinding halt quicker than the moment one of them notices the sheets haven’t been washed even though it’s the other one’s turn to do laundry. Or when the Taco Bell one of them brought home instead of cooking starts repeating on the other. Or when those toddler twins start fighting over who got poop on whose diaper. Based on this evidence alone, I wouldn’t be surprised at a solid 6-3 decision on gay marriage, with all six male justices voting against.

3. The Gay Discount. Sorry, my LGBT brothers and sisters, but in the interest on putting it all out there so the big nine can make a fair and just ruling, I’ve got to pull the curtain back on this one. Starting with Massachusetts back in 2004, in states where gays and lesbians are now allowed to legally wed, it’s become customary for other gays and lesbians to give them a 25 percent courtesy discount on all professional goods and services. This secret price break is sweeping. I’m talking medical fees, clothing, car washes, yard work, cat sitting, palm reading, all of it. Nobody knows how it started, maybe to offset all those federal tax penalties, insurance rules and Social Security losses to DOMA. Even I have to admit the gay discount is insidious and patently unfair, a pretty huge adverse real-world consequence to those folks forced to choose traditional marriage. We all want a fair outcome at this trial. In order to find on the side of justice, the court must know about the gay discount.

4. Intermarriage. No one wants to talk about this, but it’s the inevitable endgame. What’s going to happen when this brand new, unprecedented generation of children — the kids of the gay-marrieds — grow up and start getting hitched? I’ll tell you what. They can’t all marry each other; there will inevitably be intermarriage with the offspring of the straight-marrieds. This could turn out badly. I don’t have a crystal ball, but coming from such different cultures and backgrounds, I don’t see how there can’t be clashes. What happens when the children of traditional families end up exposed through marriage to the sorts of cultural secrets their parents have spent a lifetime trying to shield them from. Like the existence of 2000-thread-count sheets or how the winners on America’s Top Model are really chosen.

5. Global Warming. This one seems obvious, though I’m sure there are overeducated elites who’ll try to use gambits like “scientific theory” to claim there’s no correlation. But anyone with eyes can see the direct link between the birth of the gay rights movement and global warming. Forget the elites. Listen to the preachers on this one. The first worldwide shifts in weather patterns began to be noticed around the time of the Stonewall Riots, as it was predicted in the Book of Mormon. But the undeniable, sharp and measurable spike in global warming has come since 2004, in the nine years since marriage between gay people became legal in Massachusetts. Katrina anyone? Sandy? Melting ice caps? Rush Limbaugh’s persistent sunburn? Real-world consequences.

[Stone holm]

I am not sure why he could not come up with any reason why gay marriage would be harmful. Here are five he should have considered using.

Lol...have to confess that although I do not condone people entering into SSM...in response to how we might have our run down community catch up with neighboring communities, I once seriously suggested importing more gays.

[Stone holm]

Lol...have to confess that although I do not condone people entering into SSM...in response to how we might have our run down community catch up with neighboring communities, I once seriously suggested importing more gays.

Oh migosh....

http://www.addictinginfo.org/2013/04/09/hell-freezes-over-as-glenn-beck-endorses-marriage-equality-video/

[cdowis]

And here is the question Kennedy asked about your point, How would you answer him?

Kennedy at one point admitted uncertainty about whether there is sufficient evidence examining the effect of marriage equality on society, but he then pivoted to note that the nearly 40,000 children raised by gay parents in California suffer “immediate legal injury” because of Prop 8.

These couples entered into this relationship with full knowledge of the potential consequences of their decision when the court refused a restraining order on those marriages. It happens all the time when a legal status is still uncertain.

For example, Obama's NRLB is still meeting and making decisions despite the recent uncertainty of their legal status. Hundreds or thousands of decisions could be invalidated depending on the outcome.

It is certainly within the court's purview eventually to grant some sort of remedy for these children.

[california boy]

Oh migosh....

http://www.addicting...equality-video/

Looks like the Republicans are coming around to supporting gay marriage as well.

100% of RI Senate Republicans Support Marriage Equality

We support Senate Bill 38 because it rightfully extends the civil aspects of marriage to all Rhode Islanders while protecting the freedom of religion our state was founded upon. Gay and lesbian couples deserve to be treated equally under the law, and at the same time churches, synagogues and mosques in our state must be free to exercise their faith and their sacraments as they see fit. This bill strikes the right balance and should be passed by the Senate.

Our Campaign Director Ray Sullivan applauded the caucus for their endorsement:

“We are proud and humbled to have earned the support of the entire Senate Republican caucus for Senator Nesselbush’s legislation. We applaud their courage and their conviction in standing up for all loving, committed couples and their freedom to marry. That this is the first legislative caucus of either party to unanimously support marriage equality is a testament to the bravery and strength of character of these five senators. We thank them for their support, and look forward to their voting in favor of S38.”

[Stone holm]

Looks like the Republicans are coming around to supporting gay marriage as well.

100% of RI Senate Republicans Support Marriage Equality

Cheap date...I mean vote.

[california boy]

Last week, New Zealand passed gay marriage. Today France did as well.

Live: French parliament adopts gay marriage law

"This is a victory for equality, democracy and co-existence. This lawdoes not take away any rights to anyone but gives them to others.This is a freedom after years of mobilization for equality, "said the spokesman for Inter-LGBT

Justice Minister Christiane Taubira immediately hailed the adoption of the bill as a "historic" moment in French history.

"It grants new rights, stands firmly against discrimination (and) testifies to our country's respect for the institution of marriage," she said in a statement shortly after the vote.

"This law... brightens the horizons of many of our citizens who were deprived of these rights," she said.

[Stone holm]

Last week, New Zealand passed gay marriage. Today France did as well.

Live: French parliament adopts gay marriage law

And you think whatever the French do is going to have any weight with those on this thread disagreeing with you?

[california boy]

And you think whatever the French do is going to have any weight with those on this thread disagreeing with you?

I just think it is informative why people are changing their minds about gay marriage no matter where they are from or what their backgrounds are. These seem to be the arguments that are actually changing how people think about gay marriage even when just a short time ago they were admittedly against it.