Some quick, pre-seder thoughts on today’s oral arguments in the Prop 8 case:
As I wrote the other day, the DOMA case is more personally relevant to me than the Prop 8 case. I already live in a state with marriage equality, and at this point, the only way DOMA will be overturned is if the Supreme Court does it. Due to partisan gerrymandering, we won’t have a Democratic House of Representatives for a while, and no GOP-controlled House is going to vote to get rid of it. No matter what happens with the Prop 8 case, it seems clear that it’s going to disappear one way or another in the next four years. Four years is still a long time to those who can’t get married, but without judicial intervention, Prop 8 will disappear much sooner than DOMA will.
That said, today’s oral arguments in the Prop 8 case were frustrating to listen to and read. Some of the justices just don’t get it.
There was Scalia, snidely and passive-aggressively asking Ted Olson exactly when it became unconstitutional to deny gay couples the right to get married. Olson smartly parried with his own question: when did it become unconstutional to deny interracial couples the right to get married? Scalia was just beating his dead horse that the Constitution never changes. I’d like to ask Scalia: exactly when did it become unconstitutional to discriminate against women?
Then there was Scalia (again) saying that we don’t know whether it’s a good thing for children to be raised by same-sex couples, even though all respectable social science has shown that it makes no damn difference what the genders of the parents are. Is it a good thing or a bad thing for kids to be raised by interracial couples? Is it a good or a bad thing for kids to be raised by Jews who live in Christian neighborhoods? Is it a good or bad thing for kids to be raised by couples who are in any way different from everyone else?
That’s my biggest problem with opponents of marriage equality. Don’t they realize that thousands of gay couples are already raising children, married or not? And if these justices have a problem with marriage equality because it might lead to more kids being raised by same-sex couples, why don’t they have a problem with civil unions, which supposedly already provide all the rights and protections of marriage, because after all, marriage is just a “label”?
Then there was Alito, saying that we need to be careful because same-sex marriage is newer than cellphones or the internet, like that makes any difference when we’re talking about love and commitment and human rights.
I was discouraged by Kennedy, who didn’t seem to want to buy the Ninth Circuit’s argument that was tailored implicitly for him. Maybe the Ninth Circuit was too clever by half.
I was most of all discouraged by Chief Justice Roberts, who seemed as skeptical of marriage equality as the other right-wingers.
Oral arguments are not necessarily indicative of the final decision (just ask Roberts about the health care case). And it seems very possible that the Court could overturn Prop 8 through inaction, either by letting the Ninth Circuit decision stand or by dismissing the case for lack of standing. But the tone of the questions discouraged me.
Perhaps things will go differently tomorrow in the DOMA hearing, when federalism arguments will take prominence. I imagine someone will ask about what happens if a Mississippi couple decides to get married in New York, because it has no residency requirement, and then goes back home to Mississippi: will the couple have a marriage that is recognized for federal purposes but not for state purposes, and how is that more complicated than having a marriage that is recognized for state purposes but not for federal purposes? The answer is that far more couples get married in their home states than go forum-shopping for marriage. But the justices like to poke and prod at the issues, so the question could come up.
I don’t know. I’m just going to take a deep breath and remember that none of us can predict anything.