Some Thoughts on Today’s Oral Argument in the Prop 8 Appeal
Earlier today, I live-blogged the argument to a Ninth Circuit panel in Perry v. Schwarzenegger.
Now, with dinner and a ridiculously difficult swim behind me, and the kids in bed, here are some observations about what I heard (and saw in the judges’ faces) during the argument:
(1) The court seemed much more interested in the unique facts of California’s marriage equality/Prop 8 situation than in reaching a broad decision about whether the U.S. Constitution confers a right on same-sex couples to marry. Judges Hawkins and Reinhardt, especially, kept encouraging Ted Olson to take a big — but incomplete — victory, declaring Prop 8 to be unconstitutional, but avoiding the deeper question of whether the state can ever deprive its gay and lesbian citizens of the right to marry.
Here’s the path to doing so: In the 1996 Supreme Court case, Romer v. Evans, the Court struck down an amendment to the state’s constitution that effectively walled gays and lesbians off from any legal redress for discrimination. As Justice Ginsburg pointedly noted during argument, under the state’s argument, any LGBT state resident could be denied the right to borrow a book from the public library just because of sexual orientation, and would have no redress. This, the Court said, no state may do. It’s hard to find an action that strikes more directly at the heart of the equality principle, and Romer famously began with a quote from Justice Harlan’s eloquent dissent in Plessy v. Ferguson: “The Constitution neither knows nor tolerates classes among citizens.”
Reinhardt and Hawkins made ample use of Romer, strongly suggesting that Prop 8, by taking away a right that the state’s supreme court had already deemed fundamental (earlier that same year, 2008), created for LGBT citizens a second-class standing, by the name “domestic partnership.” And given that the domestic partnership confers all the rights of marriage but withholds the name, it’s hard to avoid the conclusion that the enactment is motivated by anything other than animus towards gay and lesbian couples.
There’s something paradoxical about this, of course (as I’ve noted in a law review article, The Short, Puzzling(?) Life of the Civil Union) — a state, such as California, that’s gone all the way up to marriage for gays and lesbians while withholding the word is, under this approach, is more vulnerable to challenge than a state like, say, Florida, that has no state-wide protection for gays and lesbians. Indeed, Charles Cooper (attorney for the Prop 8 proponents) called this kind of analysis “perverse.” But it might carry the day, if the court finds that at least one of the Prop 8 defenders before it has standing. (See (3), below.)
(2) None of the substantive arguments in favor of Prop 8 appeared to have much traction with the court, except with Judge Smith. I’m not oversimplifying to say that the argument was really about procreation — particularly, accidental procreation — and little else. That’s all they had once the court wouldn’t stand for the argument that “the people” should get to decide to continue restricting marriage to opposite-sex couples because — well, because marriage has so far been restricted to opposite-sex couples.
(3) I wouldn’t be completely surprised if the court finds that the Prop 8 proponents have no standing; that’s not what I’m expecting, but it could happen. The questions on standing were pointed, withering, and perhaps decisive. I’ll leave further analysis of this point to those few experts in procedural constitutional law who have thoroughly digested the case law on this issue. (Some good ones are linked here.)
(4) There’s much, much more to come. The court even suggested that the case might for a time be diverted to the California Supreme Court to resolve an issue central to standing. Whether or not that happens, there will still be an appeal by the losing side to the full Ninth Circuit (called an en banc hearing), a likely appeal to, and decision by, the U.S. Supreme Court, and then even a remand (possibly) to the trial court — but not to Judge Walker, who is about to retire.
———
All things considered, I think the court would be wise to limit its ruling to the unique facts and circumstances of Prop 8 (and here I’m assuming that the case will survive the appeal). Here’s why:
Justice Kennedy, who holds the balance of power, would be much likelier to agree with a more cabined holding. And setting the case in the context of Romer would appeal to him; after all, he wrote it.
If the Supreme Court does throw out Prop 8 — without deciding the broader question of marriage equality, once and for all (or as “once and for all” as the Court gets) — then the gigantic, bellwether state of California will soon be issuing millions of marriage licenses to gay and lesbian couples (as well as eliminating needless complications that have tied courts up when dealing with transgendered folks) and it will become clearer, faster that the Earth didn’t spin off its axis. More states would then follow, more quickly, and before long the issue will become so clear — if not plain dumb, a waste of time and energy for all but the few most zealous oppositionists — that the Supreme Court would face little to no backlash in calling all committed, loving couples into the constitutional embrace of full marriage equality.
Live-Blog of the Prop 8 Appellate Argument
Here’s what I came up with earlier today. The faint-of-heart (and of patience) can skip past the standing issue and start about halfway through the long post, where the court and the ligitants get into the substance of the debate about same-sex marriage and Prop 8.
Live-Blogging Monday’s Oral Argument in Prop 8 Appeal
On Monday (Dec. 6), the Ninth Circuit (federal appellate court) will be hearing arguments in Perry v. Schwarzenegger, the case challenging the constitutionality of Proposition 8. I will be live-blogging the argument, beginning at 1 pm EST, over at 365gay.com. (I will link back to it from here when it’s done, but if you want the blow-by-blow, go there — not here.)
The first hour will address the standing issue; the second, the substance of the constitutional arguments. While standing arguments are usually a MEGO1, in this case it’s worth listening closely — there’s more than a minimal chance that the court will toss the Prop 8 defenders out on the ground that intervening parties don’t have standing to appeal.
- “My eyes glaze over.” ↩
Beneath Maggie Gallagher’s Stated Arguments
Today, in light of the civil union law soon to go into effect in Illinois, I wrote (at 365gay.com) about the right’s increasing incoherence on whether civil unions are an acceptable compromise. I chose Maggie Gallagher’s confusing and contradictory statements as a representative example of this back-and-forthing.
Here’s something to add to the mix: A woman who recently debated Gallagher on marriage equality told me that Gallagher had shared this view with her:
When the father of Gallagher’s child lit out rather than take responsibility for the kid, she came to think that men are terrified of marriage. And since she also thinks — independently of this first thought, and without basis that I can see — that straight men are repulsed by gay sex, then then concludes that the specter of gay men being able to marry would even further drive straight men away from marriage.
Maybe this isn’t exactly what she thinks, but I trust my source. (If it’s not correct or fair, I welcome a response from Ms. Gallagher.) And she’s not the only one. As I wrote some months ago, one reason that Heather MacDonald opposes same-sex marriage is that it might make black men — whom she lumps into a homophobic monolith — less likely to marry.
MacDonald’s risible assertion didn’t escape the ridicule it merited. If Gallagher’s view is a close kin of hers, it’s no wonder she’s not voicing it publicly. But it’s worth reflecting on the cost of this unsupported, emotional argument on the lives of committed same-sex couples.
Illinois Poised to Enact Civil Union Law: What it Means
The Illinois House just passed a civil union bill. As has become the rule with such legislation, this statute will provide gay and lesbian couples with all of the state-conferred rights, privileges, and obligations of marriage — but without the name. It’s widely expected to pass the Senate and then to be signed by Gov. Quinn.
Adding those states (and D.C.) that have full marriage equality, those that recognize same-sex marriages from other states (Maryland and New York) and those that confer the benefits of marriage without the name — civil unions or one version of domestic partnerships (as in California) — we are now well into the double digits. And more victories are likely, and soon, in several states (Rhode Island, Hawaii, and possibly New York).
The civil union, as I’ve written, is ultimately an unacceptable substitute for marriage. But with each state that creates them, the pressure on the whole federalist system for a comprehensive solution grows. Yes, that solution could be the civil union compromise. But I doubt it. By the time the glacial Congress is ready to repeal DOMA, marriage — not its poor relation — will be the answer. And it will be so obvious that most will already be looking back at this controversy and shaking their heads.
“Every Ball Kind of Listens to Him….”
That was the aptly poetic description of Roger Federer’s game by sometime-rival Novak Djokovic, whom the impeccable Swiss utterly thrashed in their mercifully brief semifinal match in the ATP World Tour Finals. Djokovic is an extremely gifted tennis player, who’s been as high as number two in the world (although his permanent residence is at number three, locked out of the top two by the stingy Federer-Nadal oligopoly). When he’s on his game and Federer is just a tad off his — as was the case in this year’s U.S. Open — you’ve got a match. But when Federer is scaling the sublime heights that fill up my DVR, Djokovic is the tennis equivalent of the Washington Generals to Federer’s globe-trotting excellence.
Then Federer, who has been playing with merciless purpose and precision all Fall, put paid to arch-rival and chief tormenter Rafael Nadal in the final, raining down a hail of unplayable serves, forehands and even backhands (Nadal’s usual advantage) to seal the decisive third set, 6-1. A new coach and a few off-color performances in the Spring and early Summer appear to have worked a rejuvenation, and given the 29-year-old artist a springier step.
Nadal, of course, is only the guy who won three of the four major titles in 2010. So as the Australian Open looms in just over a month — after the sport’s criminally short “off season” — Federer will defend his lone major title from the past year, while Nadal will try for four in a row. (Are there other players with a shot? Sort of; since the 2005 French Open, twenty-one of the last twenty-three majors have been won by either Federer or Nadal, with only Djokovic (2008 Aussie Open) and Juan Martin DelPotro (2009 U.S. Open) breaking through).
2011 should be another great year. Expect more of this from Federer:
…and this from Nadal…
…two bitter rivals…
You can keep the NFL.
Thanksgiving
My future self has much to be thankful for. So does my present self, come to think of it.
OK, OK (You Can Use a Condom, If and Only If…)
The Pope has moved a teensy bit closer to sanity, recognizing that there are cases where condom use might be part of a strategy to reduce the incidence of STDS:
Pope Benedict XVI says that condom use is acceptable “in certain cases”, notably to reduce the risk of HIV infection, in a book due out Tuesday, apparently softening his once hardline stance.
In a series of interviews published in his native German, the 83-year-old Benedict is asked whether “the Catholic Church is not fundamentally against the use of condoms.”
“It of course does not see it as a real and moral solution,” the pope replies.
“In certain cases, where the intention is to reduce the risk of infection, it can nevertheless be a first step on the way to another, more humane sexuality,” said the head of the world’s 1.1 billion Catholics.
It’s a step, but an even smaller one than first appears. Male prostitutes don’t seem especially likely to listen to the Pope. Catholics who are married or in long-term relationships might be swayed, but the advice doesn’t apply to them — at least not clearly. It still seems as though the opposition to birth control trumps all, even a commitment to basic public health.
Fruit Cake
Fred Schneider of the B-52’s now has three albums to his “credit,” while the rest of the band have produced a total of…none. What a world! Here’s a (half) celebration of a holiday favorite:
I was reminded to do this after reading Joe.My.God’s post on the new XMas album by Schneider and his latest side project, the Superions. He’s got a couple of videos there, but somehow missed this gem. And welcome to the onrushing Holiday Season!
More, Please
In this week’s 365gay column, I make the point that many of the anti-equality forces do us a favor every time they try to defend their indefensible positions.
So let them keep talking, even though it can be painful to sit through such bigotry.