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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