- Washington D.C. 03/29/2013 by Alan Arthur Katz (WBAI)
On Tuesday and Wednesday of this week, the Supreme Court heard oral arguments from the parties involved in two landmark same-sex marriage cases: Hollingsworth v. Perry (the California Prop 8 case) and Windsor v. United States (the DOMA case).
These cases address two very different issues. In the Prop 8 case, the issue is whether a state can vote to deny its LGBT citizens the same right to marriage that heterosexual couples enjoy. The DOMA case, on the other hand, concerns the Federal government and whether it has the right to invalidate state-sanctioned, legal same-sex marriages for purposes of more than 1100 statutes ranging from estate tax exemption to notification of spouses of military casualties.
Though very different in both intent and scope, each case has the potential to dramatically impact the lives of LGBT Americans.
The Prop 8 case was heard on Tuesday, March 26th.
The appellants (the proponents of Prop 8) were represented by Charles Cooper, the same attorney who plead the original case in district court. As the appellant, he was there seeking to overturn the 9th District's Appeals Court ruling invalidating Prop 8.
Ted Olson appeared as the defendants' attorney, arguing their right to marry. Prop 8 had already been overturned in district court and that ruling was upheld upon appeal to the 9th Circuit. Olson was defending the decisions rendered by both courts that overturned Prop 8.
Before either could begin, they were interrupted by Justices who asked them to first discuss standing, before getting to the merits of the case. Standing refers to a party having the legitimate right to bring a case before the Court. The Supreme Court has held, for decades, that in order for a party to have standing before the court, the party must have a "particularized injury", meaning that they individually will suffer harm if the lower court's decision is upheld. Having a "generalized injury", such as protecting the political process, does not grant standing. The main question before the Court is who has standing if the State, itself, refuses to defend the statute?
Several justices questioned whether the proponents (the appellants) had standing to appeal. In fact, almost all the questioning throughout the morning's session seemed to indicate that the Justices would just as soon punt - they appeared to be looking for any loophole to walk away from the case or limit it to California. It's obvious that this Court does not have the stomach for any kind of bold ruling - any kind of ruling that might directly address the rights of LGBT Americans that are being violated solely on the basis of prejudice and animus, and cause Marriage Equality to become the law of the land. Justice Kennedy, in fact suggested that the case perhaps should be dismissed, which would leave the California rulings intact, Prop 8 overturned, but limit the impact to the 9th Circuit.
Once the Court got to the merits of the case, a number of surprising topics were breached by the Justices - Scalia, in particular. Scalia is known to be intensely anti-gay. He asked Olson "I’m curious. When did it become unconstitutional to exclude homosexual couples from marriage? 1791, 1868, when the 14th Amendment was adopted? When did the law become this? When discrimination against gays became unconstitutional?" He repeatedly demanded that Olson give him a specific date. Olson's reply was exactly on point. Phrased as a question, he asked Scalia "When did it become unconstitutional to prohibit interracial marriage ? When did it become unconstitutional to assign children to separate schools?" His reply seemed to anger Scalia.
As expected, Cooper attempted to defend Prop 8 with that shibboleth about marriage furthering the interest of the State through responsible procreation. Several of the Liberal Justices took issue with that, asking if it would be OK to require fertility tests before marriage or prevent couples over 55 from marrying? Cooper responded with arguments so lame that it caused members of the gallery to gasp or laugh. He claimed that since the man was probably still fertile, the State still has an interest in keeping him from fooling around outside of marriage. Kennedy, showing his compassion, asked Cooper at one point, "What about harm to the 40,000 children" (the number of children living with same-sex parents in California)? Cooper did not have an answer.
He then claimed it was rational for the people of California to "press the pause button" on Marriage Equality since it was so new that it hasn't had a chance to be investigated properly. Olson responded that it wasn't a "pause" button, it was a "stop" button.
Sadly, in the ensuing discussion, neither the Justices nor the attorneys actually seemed to get the facts right. According to Alito and Roberts, same-sex marriage has only existed for the last four or five years, while "traditional" marriage has been around for thousands. They should have Googled it. Massachusetts began issuing licenses in 2004, nine years ago; the Netherlands in 2000, thirteen years ago. Furthermore, slavery was "traditional" for hundreds of years before it was outlawed; women were not allowed to participate in the political process for generations before universal suffrage was instituted. Tradition, it would seem, is hardly the yardstick by which justice should be measured.
It was surprising that one of the key issues in this case was never discussed: the animus by which Prop 8 was passed. It was made abundantly clear in Justice Kennedy's own ruling in Romer v. Evans that laws may not be passed that disadvantage minorities because of the animus or moral disapproval of the majority. The original Prop 8 case clearly proved that the only intent behind Prop 8 was religious and moral disapproval of homosexuals. The Court did not address this in oral arguments, though the next day's DOMA arguments did.
You cannot judge Supreme Court outcomes based on oral argument, which is why so many pundits were wrong in proclaiming Obamacare "dead" long before its time. But it certainly appeared that the Justices really just wanted the Prop 8 case to go away, preferably with Marriage Equality restored in California, but not "foisted" on any state that currently does not allow it.
The DOMA Article III case was heard on Wednesday, March 27th.
The standing issue is even more complex in the DOMA case than the Prop 8 case. Since the Obama Administration announced that they would no longer defend the odious Defense Of Marriage Act, there was no adversary to sit across the aisle from Mrs. Windsor. The 83-year-old "Edie" sued the United States Government for return of the $363,000 in estate taxes she was forced to pay upon the death of her beloved wife and partner of more than 40 years, Thea Clara. They were married in Canada and their marriage officially recognized in New York State, where they lived. But because their marriage had two partners of the same gender, the Federal Government, under Article III of DOMA, treated them as strangers, and forced Edie to pay full inheritance taxes on the estate they had built throughout their life together. If the couple were not of the same gender, no taxes would have been owed.
Edie won in District Court and then on appeal. The United States refused to defend the law, essentially agreeing with Mrs. Windsor. The Supreme Court cannot hear a case in which there is no disagreement to be adjudicated. Therefore, the Republicans in the House of Representatives stepped in through a 5-member committee (with a majority of Republicans) to become the adversary despite there being no "particular injury" to any of the five. And they appropriated themselves more than $3 million in taxpayer money to pay attorneys to plead their case.
This leaves the Court faced with a real dilemma. If they rule that BLAG does have standing, they have now written new Constitutional law that allows a committee of one house of Congress to appeal Court rulings that the majority doesn't like, if the President refuses to do so. Article III of the Constitution allows "Congress" to step in, but the only time it ever has, it was with a statute passed by majorities of both the House and the Senate. If they don't allow BLAG standing, then there is no case and DOMA is toast - at least in the 2nd Circuit. The result will be years, if not decades, of additional litigation. Surprisingly enough, the Justices were much less anxious to dismiss this case than they were the Prop 8 case, probably because there was no "risk" of "forcing" Marriage Equality on the rest of the nation.
Paul Clement was the attorney for the Republican House members. A distinguished and respected attorney, for some reason he took on a case for which he would have to argue irrationally in order to win. In his briefs, he did bring up the usual anti-gay arguments, but in Court, he was very careful to seem reasonable, even going so far as to abandon all of his original arguments and rely, instead, on "uniformity".
Unfortunately his argument involves a lie, and he got caught in it. He claims that the Defense Of Marriage Act was passed by Congress in order to ensure uniformity across state lines in case some states approved same-sex marriage and others didn't. Framed as a "defense of gays" argument, he went on to try to demonstrate that Congress' intent was to ensure that all gays would be treated equally, no matter what state they reside in by refusing them all the rights and privileges they allow all straight couples - but uniformly.
Justice Ginsburg retorted with her now famous question: "You are really diminishing what the state has said is marriage... There's two kinds of marriage, there's full marriage and then there's sort of skim milk marriage...[Marriage benefits] affect every aspect of life..."
Justice Kagan wasn't having any of Clement's argument either. In response to his long-winded defense of "Federal Uniformity" and it's benefit to LGBT Americans, she read back from The Congressional Record at the time when DOMA was passed: “Congress decided to reflect and honor collective moral judgment and to express moral disapproval of homosexuality." As she pointed out, this has nothing to do with "uniformity". It was bigotry. And that is unconstitutional under Romer v. Evans.
There was much more argument, particularly about States' rights vs. the Federal Government, but it had become pretty clear that there were at least five votes to invalidate DOMA.
Of course, one should not prognosticate a ruling from the oral arguments. But don't be surprised if the Court dismisses or issues a narrow ruling on Prop 8 and kills Article III of DOMA. It will be a step forward for equal rights, although not the sweeping ruling that America deserves.