Breaking News

Evening round-up: Proposition 8 argument

This morning’s oral arguments in Hollingsworth v. Perry, involving the challenge to California’s Proposition 8, continue to generate lively discussion and analysis among media outlets and the blogosphere. Coverage is focusing primarily on how Justice Kennedy might vote in the case and the threshold issue of whether the proponents of Proposition 8 have standing to defend the initiative. Kali Borkoski has posted links to transcripts and audio from today’s oral argument here. More pictures from outside the courthouse are here.

At this blog, Lyle Denniston observes that, with the Justices so clearly split along ideological lines, focusing on Justice Kennedy to predict an outcome was an “even more reliable approach this time” than usual, and Justice Kennedy appeared strongly tempted to conclude that the case was improvidently granted. Thus, as Amy Howe observes in her review of the arguments “in Plain English,” “the real question before the Court is not whether it would strike down Proposition 8, or what the broader effect of such a decision might be, but whether it is going to reach the merits of the case at all.” Tom Goldstein explains that if these indications hold true, the Court’s ruling will take one of two forms: Either the Court could conclude that the proponents of Proposition 8 lacked standing to bring the claim, in which case it would “vacate the Ninth Circuit opinion but leave in place the distinct court decision invalidating Proposition 8,” or “the Court may dismiss the case because of an inability to reach a majority. . . . The upshot of either scenario is a modest step forward for gay rights advocates, but not a dramatic one.” In “Reaching a judgment,” Tom Goldstein reflects further on an additional option before the Court in Holingsworth light of its contemporaneous consideration of United States v. Windsor, the challenge to the federal Defense of Marriage Act: if the Court is unable to get five votes on any single issue, it may vote to vacate and remand the Ninth Circuit’s judgment in Hollingsworth for reconsideration in light of Windsor. [Disclosures: Kevin Russell of the law firm Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, was among the counsel on an amicus brief filed by former senators in support of Edith Windsor in Windsor. Tejinder Singh, also of Goldstein & Russell, P.C., was among the counsel on an amicus brief filed by international human rights advocates in support of the respondents in Hollingsworth.]

Media coverage also includes statements from the lawyers representing the two same-sex couples in Hollingsworth. The Wall Street Journal has published an op-ed written by Ted Olson and David Boies, the lawyers leading the challenge to Proposition 8, in which they argue that marriage is a fundamental right and that states should not remain free to deprive same-sex couples of that right for as long as they wish. ABC News has video coverage of Ted Olson introducing the plaintiffs in the case and answering questions about oral arguments. Debra Cassesns Weiss of the ABA Journal profiles Charles Cooper, the lawyer defending Proposition 8 before the Court.

At Bloomberg, Laurie Asseo and Greg Stohr recap today’s oral arguments, while at Bloomberg View Cass R. Sunstein outlines the four possible paths for same-sex marriage after this week’s oral arguments. Ilya Shapiro at Cato at Liberty also provides analysis of the oral arguments and the potential outcomes in the case. At NPR, Nina Totenberg (audio) summarizes the three key points of today’s oral arguments, while Liz Halloran highlights the individual Justices’ apparent positions on five key questions. Other coverage of today’s arguments comes from Joe Palazzolo and Jacob Gershman at The Wall Street Journal Law Blog (subscription required), Mark Sherman for the Associated Press, Adam Liptak of The New York Times, The Washington Post’s Robert Barnes and Carol Morello, The BLT’s Tony Mauro, Michael Doyle at McClatchy Newspapers, and Lawrence Hurley and David Ingram at Thomson Reuters.

On the issue of public opinion, Politico’s Josh Gerstein and Jennifer Epstein observe that “[t]he country may seem to be in a hurry on same-sex marriage, but not the Supreme Court.” In his FiveThirtyEight column for The New York Times, Nate Silver traces the rapid increase in public approval of gay marriage and observes that “the steadiness of the trend give[s] its supporters more confidence that the numbers will continue to break their way regardless of what the Supreme Court decides.” Writing for Policymic, Tanya Washington, who filed an amicus brief in opposition to the Defense of Marriage Act in United States v. Windsor, explains that young people overwhelmingly support gay marriage and that “if the Supreme Court listens to the millennials, same-sex marriage will become legal.” Writing for the Brookings Institution, Jonathan Rauch observes that the political nature of the conversation at oral arguments, though normally “bad,” was in this case a positive: “The court just didn’t have enough clear law to decide the questions before it. So it had to do what the Supreme Court must do, and indeed should, when law can’t settle the problem. It openly considered the political consequences of its decisions.” Mike Dorf at Dorf on Law posts additional discussion about the potential impact that a fear of backlash may have on the Court’s disposition of the same-sex marriage cases.

Other coverage focused on indications of the individual Justices’ positions regarding same-sex marriage. At Jost on Justice, Kenneth Jost observes that the Justices “appeared to open the possibility of skirting a definitive ruling [in Hollingsworth], but a majority of the justices also signaled at least tentative support for marriage rights for gays and lesbians.” Damon W. Root of writes that “[a]lthough the U.S. Supreme Court appeared extremely divided this morning over the legality of California’s ban on gay marriage, the justices did exhibit widespread agreement on one point: None of them seemed to find the Obama administration’s position on Proposition 8 [that it is unconstitutional for states allow for same-sex civil unions but not same-sex marriage] to be very convincing.” At Reuters, Richard L. Hasen explores the factors that may lead some members of the Court, in particular Justice Kennedy, to make a trade-off in deciding in favor of some civil rights causes – same-sex marriage – at the expense of others, such as affirmative action and the Voting Rights Act. At Bloomberg, Francis Wilkinson interviews Yale Law School Professor Jack M. Balkin about originalism, Justice Scalia, and gay marriage.

Finally, NYU Review of Law & Social Change has recently published a symposium featuring thirty essays from legal scholars and practitioners discussing Hollingsworth v. Perry.

Recommended Citation: Sarah Erickson-Muschko, Evening round-up: Proposition 8 argument, SCOTUSblog (Mar. 26, 2013, 6:29 PM),