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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Tuesday, March 26, 2013

Prop 8

SCOTUSBlog provides analysis and linkage to today's oral arguments, the audio released at around 1 P.M. The general sentiment is that Justice Kennedy doesn't want to decide the case, but would support some sort of dismissal on standing or other grounds.  I'm okay with that.  Not a big fan (at least on the record, neither did the couples, who won below) of taking the case, since it was narrow and seemed prudential to let it lie.

To my ear, there wasn't that much heat in the orals, though various arguments were handled (it was a running joke that each party didn't really want to talk about jurisdiction/standing, but the justices did). The liberals as much as Justice Kennedy seemed to wary about giving the Prop 8 side standing when state officials did not offer it though there (fwiw) they didn't all seem closed to the idea standing might be warranted.

The libs did sound supportive of giving protection based on sexual orientation.  Conservatives didn't really press the issue too much.  Let's see how things go on that front tomorrow regarding DOMA.  Scalia did raise the trope of  "when" same sex marriage was protected but Olson (rightly) noted these things develop over time. Brown didn't say segregation in public schools were unconstitutional such and such a day.  And, the idea Loving was merely one hundred years too late is lame.

The Obama Administration's position is that heightened scrutiny is warranted here and that once full civil union / domestic partnership rights are applied, it is unconstitutional not to go all the way.  Justices, on both sides, wondered why it made sense since this would pressure states that go almost all the way more than those that did deny all rights to such couples.*  This was granted, but focus should be placed on the strength of the state's claimed interests [Kagan had them admit "responsible procreation" was their basic argument], and at least here, they did not hold up when civil unions were protected.  The federal SG also noted something that I have repeatedly when appeals were made to reversing state judicial rulings on SSM on a sort of "go it slow" argument: 
California did not through Proposition 8 do what my friend Mr. Cooper said and push a pause button. They pushed a delete button. This is a permanent ban. It's in the Constitution. It's supposed to take this issue out from the [normal] legislative process.
 There are different people at Balkinization, Concurring Opinions and Volokh Conspiracy, some of whom I generally take as "reasonable conservatives," who basically scorn the 9CA ruling.  I disagree.  Alito et. al. believe SSM is novel and it is too soon to decide the question across the board.  But, that ruling did not and Prop 8 need not be decided, should not probably, be decided on such broad grounds. Roe v. Wade dealt with a law that banned abortion in almost all cases and Doe v. Bolton a somewhat less restricted one.  This covers a narrow question. 

But, if they want to decide it by punting, fine.  On another blog, someone noted there are cases in the pipeline that will require facing up the question.  The cases cover various grounds and the immediate ones to my knowledge actually does not need to address the full question, like if SSM should be protected where even civil unions are not. Take a question about adoption that Scalia posed.  Just one state doesn't allow gays to adopt [edit: actually, gays can adopt; Mississippi has on its book a law against two parent adoptions for same sex couples] though different ones apply things differently.  Striking down a law that denies a gay to adopt or a same sex couple is just one of a myriad of lesser questions that can be addressed.  Let them.

Some rather the matter just be decided. That might be best on some level, but it doesn't seem to be likely to happen.  So be it.

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* It was a tad ironic, or something, that the SG's attempt to cabin the relief here by drawing this line, instead of taking an "all or nothing" approach was rejected by conservative justices.  We can't go so fast so soon, but you aren't asking us to go fast enough! In some other case, this sort of thing would not be done.  The Roberts Court, when they wish, has been known to rather artificially limit the reach of rulings. NOW, this is a problem?

And, the line in California makes sense -- the Prop 8 proponents want to limit rights for a specific reason.  They have to show a strong enough purpose to do this. Ted Olson noted this as well. If it is lacking, the fact that the result is in some fashion ironic ("almost" enough is not enough) does not erase the problem. Equal protection can sometimes lead to less, such as an exemption being removed to avoid giving it out to someone.

This really isn't that hard.

4 comments:

JackD said...

You're right; it isn't that hard.. .intellectually. It's the psychological aspect that's hard for the opponents of SSM just as it was for the opponents of interracial marriage and there are enough of those people in the country having a problem with it that it makes the justices,or some of them, nervous. I know the polls are strong for SSM but the opponents are fervent and loud. I think they scare the court a little.

Joe said...
This comment has been removed by the author.
Joe said...

I wonder what justices wanted this case and why. Unless the standing issue was some compelling concern, it made a lot of sense to let it be.

JackD said...

Good question. I have no idea.

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