SCOTUSblog Predicts A Modest Victory For Prop 8 Opponents In The Supreme Court

UPDATE: Towelroad has an audio recording of today’s oral arguments, and also a transcript.

Tom Goldstein of the highly respected SCOTUSblog was in the audience for the Supreme Court’s oral arguments today in the Proposition 8 case, and came away with some predictions.

…Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail. He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new. He also noted the doubts about the petitioners’ standing. So his suggestion was that the case should be dismissed.

If those features of the oral argument hold up – and I think they will – then the Court’s ruling will take one of two forms. First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing. That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8. [...]

Second, the Court may dismiss the case because of an inability to reach a majority. Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him. Others on the left may agree. That ruling would leave in place the Ninth Circuit’s decision.

The upshot of either scenario is a modest step forward for gay rights advocates, but not a dramatic one.

Although it’s not the sweeping victory SSM advocates want, overturning Prop 8 would still be a big deal. Currently, 16% of Americans live in states where same-sex marriage is legal. If California is added, that number will almost double, to 28%.

Tomorrow, the Supreme Court will hear oral arguments on the Defense Of Marriage Act. It’s widely expected that the court will find DOMA’s ban on the federal government recognizing SSM to be unconstitutional.

UPDATE:

JUSTICE SCALIA: When did it become unconstitutional to ban same-sex marriage? Was it 1791? 1868?

TED OLSON: When did it become unconstitutional to ban interracial marriage?

JUSTICE SCALIA: Don’t try to answer my question with your own question.

UPDATE TO THE UPDATE:

The above was a paraphrase from a witness, but the actual transcript isn’t so bald:

JUSTICE SCALIA: I’m curious, when -­ when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. (Laughter.)

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16 Responses to SCOTUSblog Predicts A Modest Victory For Prop 8 Opponents In The Supreme Court

  1. 1
    Myca says:

    Christ, Scalia is a slimy piece of shit:

    JUSTICE SCALIA: Mr. Cooper, let me — let me give you one — one concrete thing. I don’t know why you don’t mention some concrete things. If you redefine marriage to include same-sex couples, you must — you must permit adoption by same-sex couples, and there’s -­there’s considerable disagreement among — among sociologists as to what the consequences of raising a child in a — in a single-sex family, whether that is harmful to the child or not.

    No. No, there’s not considerable disagreement.

    —Myca

  2. 2
    Myca says:

    In fact, several years ago, a 25 year study concluded that children raised in lesbian-headed households had fewer behavioral problems than their peers. PDF

    And of course the American Academy of Pediatrics just came out in support of same sex marriage and parenting, producing a 10-page report to that effect.

  3. 3
    mythago says:

    California already allows same-sex couples to adopt. Has he not actually read the papers submitted in this case?

  4. 4
    Myca says:

    Of course not. He’s Scalia. He doesn’t need to read, he just needs to apply his preformed bigoted opinions to the case and pretend it’s what Jefferson would have wanted.

    Luckily, Ginsburg was there to school his ignorant ass:

    JUSTICE SCALIA: Mr. Cooper, let me — let me give you one — one concrete thing. I don’t know why you don’t mention some concrete things. If you redefine marriage to include same-sex couples, you must — you must permit adoption by same-sex couples, and there’s -­there’s considerable disagreement among — among sociologists as to what the consequences of raising a child in a — in a single-sex family, whether that is harmful to the child or not. Some States do not — do not permit adoption by same-sex couples for that reason.
    JUSTICE GINSBURG: California — no, California does.

    —Myca

  5. 5
    JutGory says:

    Mythago and Myca,
    Are you suggesting that the effect of the decisions in these cases will be limited to the State of California?
    -Jut

  6. 6
    mythago says:

    @JutGory: Depends on how SCOTUS rules, but the point was that Scalia seemed to be saying adoptions by same-sex couples are a totally new and unforeseen consequence of same-sex marriage. They aren’t, as shown by the fact that same-sex couples can adopt children in California.

  7. 9
    Myca says:

    Because opponents of SSM simply have no coherent non-religious argument against it, they spend a lot of time retreating to slippery-slope arguments on related issues.

    You encounter this a lot over at Family Scholars, for example, in reference to medically assisted third-party conception. Here it’s in reference to adoption by same sex parents. The problem in both cases is that if you’re worried that legal SSM will lead to some vaguely-related thing you don’t like, rather than outlawing SSM, outlaw the thing you don’t like.

    It makes sense to make these arguments against SSM, though, for two reasons.

    First, as previously referenced, it’s all they’ve got. The marriage = parenthood argument is so shitty and stupid that even Scalia made fun of it. Once you count that out, there’s really nothing left.

    Second, if you make a casual reference like this, you never have to make an argument explicitly against the thing you’re referencing. It’s outside the scope of the Prop 8 case to discuss whether or not adoption by gay parents is actually a bad thing, so you never have to have the kind of debate you would have if you were actually trying to outlaw it. Which is helpful for those opposed, because their position is weak, and if they have to use something other than insinuation and appeals to prejudice, they get their asses kicked.

    —Myca

  8. 10
    Myca says:

    Supreme Court On Gay Marriage: ‘Sure, Who Cares’:

    “I’m a strict Originalist, Mr. Cooper, and I’m looking at a 14th Amendment that forbids any state from denying any person equal protection of the law,” Associate Justice Antonin Scalia said. “So, unless we are the most uncivilized society on the face of God’s green earth, I think we can all agree that a gay person is in fact a person. So what I’m saying is, who the fuck are we to tell a person who he or she can get married to? This is dumb. Can we talk about a real case now, please?”

    —Myca

  9. 11
    carovee says:

    I heard some audio from today. Justice Scalia just hammered that question over “when did it become unconstitutional to ban same sex marriage?” over and over again. What an ass. I’m not thrilled with the person trying to field the question but then I’m not a lawyer. The response was, as best I can recall, “that question has never been raised by this court when determining if something is unconstitutional or not”.

  10. 12
    Doug S. says:

    No. No, there’s not considerable disagreement.

    —Myca

    Well, not among sociologists, anyway. There probably is “considerable disagreement” to the extent that there’s “considerable disagreement” over the consequences of being brought up as a member of a wrong religion is harmful, though.

    (I’m reminded of things I read about the Catholic-dominated Middle Ages, during which Catholics debated whether it would be moral to take children away from Jewish families so they could be raised Catholic and therefore avoid damnation in the afterlife…)

  11. 13
    gin-and-whiskey says:

    carovee says:
    March 26, 2013 at 8:03 pm

    I heard some audio from today. Justice Scalia just hammered that question over “when did it become unconstitutional to ban same sex marriage?” over and over again. What an ass.

    Um, asking that sort of question is both his personal style and also his job.

    I’m not a scalia fan and I think the sociologist comment was assholish. but this one is perfectly reasonable.

  12. In a take precisely the opposite of the Onion’s (cf Myca’s comment above), The Borowitz Report reports that Scalia had a meltdown:

    “O.K., could we just stop talking about this stuff right now?” Justice Scalia snapped at Justice Kennedy. “I’ve told you all how I feel about this topic, and I don’t understand why we’re going on and on about it unless you all hate me.”

    As the courtroom froze in dead silence, Justice Scalia seemed to gather steam, shouting, “For two days, it’s been gay this, gay that. You’re all just talking about this stuff as if it’s the most normal thing in the world. Well, it’s not, O.K.? It’s weird and it’s wrong. And just talking about it like it’s O.K. and whatnot is making me angry beyond belief.”

  13. 15
    JutGory says:

    Mythago:

    but the point was that Scalia seemed to be saying adoptions by same-sex couples are a totally new and unforeseen consequence of same-sex marriage

    Actually, I do not think that is what he is saying at all (although we may be getting into some split hairs). He is not saying it is new or unforeseen. He seems to be saying it is a direct consequence of redefining marriage.

    He said:

    If you redefine marriage to include same-sex couples, you must — you must permit adoption by same-sex couples

    He then said that some states are not sure adoption by same-sex couples is good for children, concluding:

    Some States do not — do not permit adoption by same-sex couples for that reason

    In a complete non-sequitur, Justice Ginsburg points out that California does allow same-sex adoptions, suggesting that she thinks the impact of this case is limited to California (I know, she does not really think that). And, she may be further missing his point if same sex adoption in California PRECEDED Prop. 8 (don’t know my California history). Scalia was saying that same-sex adoption would be a direct consequence of same-sex marriage. Well, it would not be in California, if California already had same-sex adoption, but not same-sex marriage (thus, Ginsburg comes very close to commiting the fallacy of the converse).

    But what California does with adoption is beside the point in Scalia’s mind. What he is concerned about is: what will be the effect of what SCALIA does on the states that have decided they do not want same-sex adoptions.

    -Jut

  14. 16
    Emily says:

    Jut – the case before them will have implications for other states of course, depending on the ruling, but they are still bound to consider the actual case before them. The state of California must have at least a rational basis for drawing this distinction with respect to marraige. They must point to some state interest OF CALIFORNIA in doing things this way in order to justify the law. They can’t say “we have this law so that Florida doesn’t have to have gay adoptions if they don’t want to” that makes no sense as a state interest OF CALIFORNIA. So the fact that gay adoption has been legal in California for a long time is absolutely relevant.

    If this ruling comes down that Prop 8 is unconstitutional because California does not have rational basis for imposing it, some other state could, in defending its own law, raise a different state interest that applies to its law but not to California’s, and a different result might be proper. The SC is still deciding a particular case with a particular trial court record. If some other litigation comes along with a different record and different arguments, then it could result in a different decision.

    ETA – perhaps that in itself is a reason to dismiss the writ as improvidently granted. This is really a decision more dependent on the trial record and individual arguments of the particular litigants than on constitutional principles easily generalizable to other cases involving similar laws. (This is not my own opinion, but a reasonable one if one believes gay adoption policy of a state is really at all relevant to deciding this case). It also ties in to CA not appealing the district court ruling – if the state is not putting forward its reasons, maybe it really should stay as a lower court ruling applicable in this case but not precedential wrt other states.