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March 27, 2013 Print

Impressions From the Prop 8 Oral Argument

by Bruce Hausknecht

After listening to the oral argument yesterday from the Supreme Court regarding California’s marriage amendment and then reading the transcript, several things struck me:

– Attorney Ted Olson, arguing against Prop 8, was finally in a court where he truly had to – at last  – answer some hard questions, even from the liberal side of the bench. Justice Sotomayor’s question regarding the implications of Olson’s side winning on the ability of the states to regulate marriage at all, was telling. Olson decided to handle the polygamy issue by calling it “conduct,” which supposedly differentiates it from sexual orientation, which the Supreme Court has (erroneously, in my opinion) found to be a “status.”

– Justice Kennedy seems to be in a more unique frame of mind than normal, in his “role” as the Court’s recognized “swing vote” on these types of social issues. He more or less expressed his view that while the proponents of Prop 8 do have “standing” to bring and argue the appeal, he clearly has doubts about whether the issue of same-sex marriage, in general, should be before the Supreme Court yet. If the Court ends up as 4 – 4 – 1 on how to rule on this case, it may result in the 9th Circuit’s narrow decision becoming the final ruling. And that ruling would affect California only and impose same-sex marriage there. But Kennedy also expressed misgivings about the 9th Circuit’s reasoning, so he may not want to leave that ruling as the law of the case, either.

– Justice Scalia went after the “living Constitution” reasoning, coming from Olson in this case; that is, that we have evolved to the point where somehow same-sex marriage is now required by the 14th Amendment. His questions to Olson on when it became unconstitutional to prohibit gay marriage, and Olson’s fumbling of a response, helped prove Scalia’s point that the Court can’t make decisions like this based on some sort of evolutionary theory of constitutional law.

– I heard no support from any justice for the argument being pushed by the Obama administration, and somewhat as well by Olson, that once a state like California grants domestic partner or civil union rights, which mirror marital rights, it can no longer deny same-sex marriage. That argument always struck me as a sort of “no-good-deed-goes-unpunished” legal theory, not able to pass the laugh test, and I was encouraged that the justices yesterday seemed to agree.

– No one can really predict how this will all turn out.  If I were Kennedy, and truly believed that it is too soon for the courts to be involved in deciding issues about same-sex marriage, I would join the conservatives on the Court and uphold Prop 8, which would return the issue to California voters where it belongs.

Links: Transcript of the oral argument (Hollingsworth v. Perry) can be found here: http://www.supremecourt.gov/oral_arguments/argument_transcripts.aspx and the audio recording here: http://www.supremecourt.gov/oral_arguments/argument_audio.aspx



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  • Albert Nygren

    All this talk of world government scares me to death. Who would elect the rulers of this world government; no one! The rulers would be decided by coruption and political intrigue. This is a sure recipe for world wide corruption and world wide oppression of the people. The reason we have laws, laws that are written in clear language, and laws that are enacted by a locally elected body.; is so that the Government cannot put us in prison or take our life without due process.

    Kings were and are notorius for oppression because whatever they say is law.

    For people such as I who look to the Bible for guidance on this, some may quote the Apostle Paul who said that God appoints the rulers and that they are God’s agents on Earth. We only have to look at the reign of Lenon in the Soviet Union who killed over 20 million of his own people or Hitler who killed among others, 7 million Jews.

    When Jesus was tested by Satan in the desert He proves that we cannot take onl one verse from the Bible and forget about all the Rest. Satan took Jesus to a high place and said if you are the Son of God throw yourself down. Then Satan quoted word for word Psalm 91:vs 10-12. Jesus then quoted another scripture and told Satan God also says ” you should not put the LORD to the Test.”
    To balance what the Apostle Paul said we need to look at 1st Samuel 8:1-22. The people of Israel are demanding that God give them a king so they can be like other people. God says that, “it is not good to have a king.” when we talk about Global governments we need to realise that we are talking about having a king. A group of people who we never elected and have no control over determining what happens in our lives. No Sir, Give me the America of Abraham Lincoln, where the Government is of the people, by the people and for the people. That is the only real way that we can have Liberty and where we can really have the dignity of the human soul that flourishes in Freedom but is killed by the oppression of tyrants.

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