In the aftermath of the SCOTUS oral arguments in the marriage equality cases heard yesterday, much of the national media is reporting that the SCOTUS justices are "divided" on the issue of marriage equality. I'd say that most are not willing to make a prediction as to how the cases will be decided, and that is probably wise. However, I did find a few interesting responses and predictions (including my own after listening to the hearing). They follow.
My own comment after listening to Part 1 of the oral arguments:
I think we may eek out a win on the equal protection arguments. But, I'm extremely skeptical on the due process claims (because of all of those "opposite sex marriage being the case for millennia" comments).
I'm also much more skeptical of Justice Roberts ruling in our favor now. Maybe I'll change my mind after reading other analysis of the arguments later (I hope).
I haven't changed my mind, although a couple of experts whose comments I've read predict that the ruling will encompass a combo of due process and equal protection analysis. I also feel a bit more confident that the SCOTUS will come down on the side of marriage equality now.
I also expressed a bit of confusion as to the discussion about Plato. This is a relevant comment from Ari Ezra Waldman for Towleroad.
Justice Alito asked a few questions about how Plato said wonderful things about gays, but Greece still didn't officially allow gays to marry. Accuracy of what happened in Greece aside, Justice Alito appears to be trying to say that you can be opposed to gay marriage and not be a total bigot (See Plato).
That argument is miles off topic. It is absolutely irrelevant what Plato did or did not do. Greece didn't have a Fourteenth Amendment and Plato lived in a time that condoned (and embraced) slavery. Let's not get off topic. And to his credit, Mr. Verrilli brought the conservative justices back on topic when he stated, at the end of his talk, that it was simply "untenable" to deny rights to same-sex couples under a gradualism approach. The country is ready. It is time.
One of the reasons I enjoy Daily Kos is that for virtually any subject matter presented, there is someone here who is knowledgeable and/or even is an expert. So, AKBear adds to the discussion:
He brought it up
without realizing the strength and interconnectedness of the Orthodox Church within modern Greek government and laws. He also inadvertently tipped his own hand to how he would like to shape American jurisprudence to better fit his own ultra-conservative theology based loosely on Christianity.
Plato significantly predates the founding of the Orthodox Church in Greece. What the good Justice was pointing out was how times changed as did social norms. He did not support his own argument very well. Instead, he showed how bigotry and hatred of the "other" was allowed to take root and become "legal." He used a pre-Christian philosopher as an ineffective foil to justify his own, ultra-conservative take on his own religion, Catholicism.
Professor Kenji Yoshino in answering a law student's question on Reddit:
It's a great question--if a "great question" is one that puzzled me as well! I got frankly quite frustrated by all this talk about the millennia. First of all, we have Supreme Court precedent that says that tradition alone does not insulate law from Constitutional attack (Williams v. Illinois (1971)). Second, one of the most reviled Supreme Court decisions is the Bowers v. Hardwick decision in 1986, in which Chief Justice Burger talked about "millennia of moral teaching" about homosexuality en route to supporting (in a concurrence) a Court decision deeming that the right of privacy didn't extend to same-sex sexual intimacy in the privacy of one's home. So tradition is overrated. I'm not sure if that means that there wasn't much else to say, but Justice Breyer at least seemed to explore that possibility when he said that he had heard reason number one for the bans was tradition and reason number two was religion but that he wanted to start hearing about reasons three, four, and five (i.e. because reasons one and two are foreclosed by precedent and the Establishment Clause, respectively).
From Evan Wolfson via The Daily Beast:
Our opponents’ core argument in court today was that marriage bans exist for a rational, secular reason: namely, because allowing same-sex couples to marry will have a negative effect on marriage for straight people, leading to more kids born out of wedlock and all the resultant harms. But when the four more liberal justices peppered them with questions and challenges, they couldn’t back up the claim (no shocker to me!) and didn’t even pretend to have any evidence.
That contrasted with the very tangible, real harms that same-sex couples and their families face through the denial of marriage, which our attorneys brought forward again and again.
The swing vote, Justice Anthony Kennedy, asked questions of both sides, but when the states’ attorneys argued that marriage wasn’t about love, respect and dignity, Kennedy jumped in, defending the importance of dignity and the “noble purpose” of marriage. He also strongly implied that there had been a sufficient amount of time since the Supreme Court recognized the dignity of gay people in Lawrence v. Texas (which found sodomy laws unconstitutional) for the country to evolve its social mores.
But if I were a betting man, I’d certainly put my money on the Justices doing the right thing by the end of June. Love, like freedom and family, must—and will—win.
From Lyle Denniston at
ScotusBlog:
From worrying about casting aside a “millennia” of cultural norm and habit about who can marry, to wondering about whether America has had enough time to debate the issue, to a somewhat testy defense of the dignity that gay and lesbian couples would have in marriage, Kennedy appeared to have moved from hesitancy toward acceptance as the Court heard nearly two-and-a-half hours of argument in the cases that are known as Obergefell v. Hodges.
From
LGBTQ Nation:
But Brian Fitzpatrick, a Vanderbilt University law professor who once served as a law clerk to Justice Antonin Scalia, said Kennedy’s questioning seemed more favorable to same-sex marriage supporters, even with his early focus on the definition of marriage. “He did want an answer to why we should change it after 10 years of experience. I think he answered that question himself when he talked about dignity and concern for the children,” Fitzpatrick said.
Another sign that could point to the same outcome was Kennedy’s relative lack of interest in the second issue that was argued Tuesday, whether states have to recognize same-sex marriages from elsewhere, said Thomas Goldstein, a veteran Supreme Court lawyer and publisher of Scotusblog. That’s because the answer to the recognition question is unimportant if the court says same-sex couples can marry everywhere, Goldstein said.
From
The Advocate:
Duke University law and political science professor Neil Siegel was at the Supreme Court hearing. He tells us why he expects Justice Roberts isn't our friend and Justice Kennedy will save the day.
I remain very confident the court is going to invalidate the ban by at least a vote of 5-4. That’s probably the most likely outcome; it’s possible it could be 6-3 if the chief justice joined Justice Kennedy and the liberals. That’s quite uncertain. The chief said more in support of the states than in support of the challengers. He also asked about sex discrimination — whether this was unconstitutional sex discrimination to allow a man to marry a woman but not a woman to marry a woman. But the chief’s instincts are going to be in favor of the states leaning on the democratic process.
A few things are most telling. [Kennedy] said what he did about millennia, and I think that’s why journalists are saying the court is cautious. First, none of this changes the fact [Kennedy] let it get this far. For him to say now, “I didn’t mean it or you all inferred what I didn’t imply,” I think that would be really surprising.
It’s also telling what we didn’t hear questions about. We didn’t hear questions about if we rule for the states [fighting marriage equality] what will the legal status be of same-sex couples who got married in states subject to judicial order? If the states can now ban the marriages, what happens to their legal status? Are they in limbo? Can they be undone? I didn’t hear [those questions].
The basic argument of the states is that in some way if same-sex couples are allowed to marry, a message will be sent by the state to opposite-sex couples that marriage is primarily about their own gratification and fulfillment; it’s not about raising children in a stable environment. Justice Kennedy was offended by that. He said that was a wrong premise; that same-sex couples seek the same kind of dignity and status, the same noble motivations that opposite-sex couples do. It may not be about procreation, but it may be they also might want to raise children in that environment. They all struggled with the argument, because I don’t think the argument worked.
Professor Dale Carpenter of The University of Minnesota shares my view of the due process claims. From
The Washington Post:
But Kennedy doesn’t deploy the Burkean idea as a sledgehammer like that. Instead, in talking about the historical understanding of marriage Kennedy was concerned about the Court defining the tradition broadly for due process purposes. In his exchange with the Solicitor General, Don Verrilli, Kennedy referred directly to that understanding of the historical point:
I’m interested in your comments on [Washington v.] Glucksberg, which says we should have to define a fundamental right in the narrowest terms. A lot of the questions that we’re asking your colleague in the earlier part of the argument were–had that in mind, I think. What do we do with the language of Glucksberg that says we have to define it in a narrow way?
Glucksberg was a decision in which the Court rejected a claimed fundamental right to physician-assisted suicide. It was a due process case. On this view of due process, a declaration that the fundamental right to marry allows one to choose a spouse of the same sex is a departure from using the “narrowest terms” based on historical experience. Verrillii responded by saying that, unlike the petitioners themselves, the federal government was making only an equal protection argument and not a due process argument.
So it’s apparent that Justice Kennedy was very skeptical of a fundamental right argument for gay marriage. (Note that Justice Kennedy himself has not always stuck to the narrowest terms in due process cases. See Lawrence v. Texas.) Burkeanism is much more at home within the Court’s due process doctrine, which preserves historic rights, than it is in equal protection doctrine, which repudiates longstanding traditions of discrimination.
Andrew Koppelman is John Paul Stevens Professor of Law and Professor of Political Science at Northwestern University. Here is his take on the issue via
Salon:
The Court has long held that laws that discriminate based on sex must be presumed unconstitutional and invalidated unless the government can prove that they can pass rigorous, heightened judicial scrutiny. Since the state has such difficulty articulating a rational basis for denying marriage to same-sex couples, it could not withstand such scrutiny.
Bursch responded that the sex discrimination precedents “have always involved treating classes of men and women differently. And that’s not what we have here.” This has become the standard response to the sex discrimination argument: Laws banning same-sex marriage do not discriminate because they affect members of both genders equally: Men are forbidden to marry other men, and women forbidden to marry other women. But this is exactly the same kind of reasoning that the Supreme Court rejected when it struck down laws banning miscegenation and interracial marriage. The defenders of those laws claimed that they did not discriminate on the basis of race because both blacks and whites were equally barred from marrying members of the other racial group. But the law still denies rights to both men and women solely on account of their sex. The fact that Tom cannot marry Joe solely on account of gender is not somehow balanced by the fact that Sue is forbidden to marry Carol.
The cleanest, most lawyerlike way for the Court to resolve the case is just to apply its settled sex discrimination law. We will find out in June. The most controversial cases drag on until the end of the Court’s term, and this is one of those. But it’s already clear which way this is moving.
Here are Barney Frank's thoughts about the hearing.
Update 1:
It appears that one of the federal judges who ruled in favor of marriage equality has passed away.