Thoughts Before the Supreme Court Rules

Getting my thoughts down before the Supreme Court releases its decisions on DOMA and Prop 8 in just over an hour.

I slept badly last night. I fell asleep around 11:30, woke up around 3 a.m., took a four-hour sleeping pill but didn’t actually fall back asleep for another 40 minutes, then woke up again at 5:30. (So much for modern medicine.)

At least we know it’s coming this morning. That’s better than the last few days of watching and waiting.

It’s been a nutty 24 hours in American politics. The Voting Rights Act got eviscerated and Texas almost effectively outlawed abortion last night. I wish the United States were a normal country.

I feel a little selfish that I’m worried about DOMA when I have friends in California who can’t even get married in the first place. But Prop 8 is toast no matter what happens — if not now, then in the next couple of years via the ballot. Which is a long time to wait, but not as long as we’ll have to wait to get rid of DOMA if the Supreme Court does nothing about it this morning. The gerrymandered Republican House means that DOMA isn’t going away anytime in this decade without judicial intervention. A skim-milk marriage is better than no marriage — but we deserve full equality. I will be extremely sad if the Court lets DOMA stand.

The last day has reminded me that we live in a deeply flawed country in an imperfect world. But I still have hope that no matter what happens today, things will eventually turn out right. It will require work. But things will work out.

Still, Justices of the Supreme Court: do the right thing this morning.

The Prop 8 Oral Arguments

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.

The Supreme Court and Prop 8

On November 4, 2008, Barack Obama was elected president and California passed the unconscionable Proposition 8. Four years later, Barack Obama has been re-elected, but the legal status of same-sex couples in California remains in limbo.

And that limbo continues for at least several more months, because today the U.S. Supreme Court announced that it will hear the Prop 8 case.

This is a surprise, at least to me. It was nearly certain the Court would choose to hear one of the DOMA Section 3 cases, but it wasn’t certain what they would do about Prop 8. The issue before the Court with Section 3 of DOMA is potentially narrow: whether the federal government must recognize the marriages of same-sex couples who were legally married in states that allow it. This wouldn’t have any effect on states that discriminate against same-sex couples with regard to marriage. The issue before the Court with Prop 8 is, potentially, more sweeping: whether any state in the country has the right to prevent same-sex couples from marrying.

That’s not the way the Prop 8 case came up to the Court from the Ninth Circuit. The Ninth Circuit struck down Prop 8 on narrow reasoning: that once a state grants same-sex couples the right to marry, it can’t then take that right away. The only state where those circumstances are relevant is California, so the decision got the job done on as narrow grounds as possible in order to prevent being overruled by the U.S. Supreme Court.

But the U.S. Supreme Court can rule as broadly or as narrowly as it wishes on case before it. For instance, in the Citizens United case, the parties came to the Supreme Court on a pretty narrow issue: whether “electioneering communications” — in that instance, a political documentary — could be prohibited from airing on TV within 30 days of a primary election. But the Court decided, on its own accord, to broadly overturn a century of campaign finance law.

The Court can do one of several things in the Prop 8 case. It could rule that:

(1) The U.S. Constitution guarantees that same-sex couples have the right to get married. This would be a sweeping ruling that would probably lead to renewed calls for a constitutional amendment allowing states to discriminate against same-sex couples. Such an amendment would not likely get the 2/3 congressional majority it would need in order to be passed to the states, but there could be “massive resistance” in some states (let’s say, the southern states), where government officials may simply refuse to marry same-sex couples. This is the least likely ruling.

(2) Same-sex couples have no constitutional right to get married. States are free to allow it, but they don’t have to. In other words, we’d have the status quo, and marriage equality would continue its state-by-state progression. In 2016, there would probably be a ballot initiative in California to overturn Prop 8, and it would probably pass.

(3) The opponents of Prop 8 lack standing to argue the case. Interestingly, the Court directed the parties to brief this question. After Judge Walker struck down Prop 8, the state of California refused to appeal the case to the Ninth Circuit; Prop 8’s opponents asked the Ninth Circuit if they could argue it instead. The Ninth Circuit ruled, on the advice of the California Supreme Court, that it could. But the U.S. Supreme Court could find that the Prop 8 opponents are not a party to the case, in which case the Ninth Circuit’s Prop 8 ruling would be invalidated. It’s not clear what would happen then – would Judge Walker’s broad decision remain in effect? Or would it only apply to the couples who actually argued the case?

(4) Prop 8 is unconstitutional, but only because of the circumstances specific to California. In other words, it could affirm the Ninth Circuit’s decision.

I’m not sure the Court will do this. To be honest, the Ninth Circuit’s decision was a little disingenuous. The Ninth Circuit reached the right decision — that Prop 8 is unconstitutional — but it was a bit too clever. It doesn’t really make sense that the constitutional right to marry depends on whether a couple previously had the right to marry or not. The court, citing Romer v. Evans, says that taking away a pre-existing right is evidence of animus, and that animus is not a valid reason for taking away a right. But the people who didn’t want gay couples to get married after Prop 8 are the same people who didn’t want gay couples to get married before Prop 8. Why was it animus to believe so after Prop 8 passed, but not before? It doesn’t make sense, and I suspect a majority of the U.S. Supreme Court agrees, no matter how they feel about the substantive right at issue.

Then again, the Ninth Circuit did base its ruling on Romer, which said this very thing. So it’s possible that Kennedy (who wrote Romer) along with Ginsburg, Breyer, Sotomayor and Kagan could uphold the Ninth Circuit’s ruling using Romer as precendent.

But why would it do so? Why not just refuse to hear the case and let the Ninth Circuit’s decision stand? It takes four votes for the Supreme Court to hear a case, and we have no idea which justices voted to hear this one. If it was the four conservatives, perhaps they think they can win Kennedy over. Or Kennedy himself, who, for good and for ill, doesn’t seem to know the meaning of judicial restraint, might have voted to hear the case in order to put the Court’s own stamp on things. We have no way of knowing.

All we know for sure is that same-sex couples in California have been on a roller coaster over the last four years. Their hopes have been raised and dashed repeatedly. Last week it seemed that Prop 8 might soon be in history’s dustbin; the same seemed true earlier today. Instead, these couples will have to wait for justice until at least the end of June.

And justice delayed is justice denied.

On Judge’s Walker’s Stay (or Whatever)

As I said, despite my caution, Judge Walker’s decision on the stay is a nice read.

My favorite part is how he takes apart the anti-equality folks’ disingenuous plea not to harm those poor gay couples by letting them getting married under a cloud of uncertainty (how nice of them to show concern for gay couples when they’ve spent years demonstrating they don’t care about us at all):

Proponents also point to harm resulting from “a cloud of uncertainty” surrounding the validity of marriages performed after judgment is entered but before proponents’ appeal is resolved…. Proponents have not, however, alleged that any of them seek to wed a same-sex spouse. Proponents admit that the harms they identify would be inflicted on “affected couples and * * * the State.” … [T]he court considers only whether the party seeking a stay faces harm, yet proponents do not identify a harm to them that would result from denial of their motion to stay.

. . .

If proponents had identified a harm they would face if the stay were not granted, the court would be able to consider how much weight to give [this] factor. Because proponents make no argument that they — as opposed to the state defendants or plaintiffs — will be irreparably injured absent a stay, proponents have not given the court any basis to exercise its discretion to grant a stay.


Since the state government of California has decided to sit this thing out, there’s basically nobody defending Prop 8 except the anti-equality people. This also shows how crucial it is that the state government is choosing not to defend Prop 8. If only the Obama administration would do the same thing on the federal level.

Prop 8 and the Dangers of Twitter

Like many people this afternoon, I was madly refreshing a Twitter search for “prop8” and reloading the California district court’s website, over and over. Finally, at about 3:15, unsubstantiated rumors began to show up on Twitter that Judge Walker was denying the motion for a stay, meaning that same-sex couples in California would be able to get married immediately. Other twitterers then retweeted those tweets, and a live online feed of local San Francisco TV outside city hall showed a crowd of pro-equality people cheering at the apparent denial.

But I was feeling cautious. There was no decision posted online, and no official word — just rumors, with no explanation of where the rumors came from or who was supplying them.

Finally, at about 3:40, the official decision appeared online. Yes, it grants a stay.

But not right now.

Judge Walker writes:

Because proponents fail to satisfy any of the factors necessary to warrant a stay, the court denies a stay except for a limited time solely in order to permit the court of appeals to consider the issue in an orderly manner.

(Emphasis mine.)

On the last page, Judge Walker states that his decision to deny a stay is itself stayed, until August 18 at 5 p.m. PDT. That gives the Ninth Circuit six days to hear and decide an appeal of Walker’s decision to let gay couples immediately marry. Six days is a long time. It’s perfectly conceivable that the Ninth Circuit will overrule Judge Walker and issue a stay. Now, Judge Walker lays out a very strong case for why there should not be a stay, and at 11 pages it makes a great, short read. But who knows what the Ninth Circuit will do?

Yet there are still people all over Twitter expressing happiness and congratulations. I don’t get it. I don’t want to be a party pooper, but look, this thing is not over. The Ninth Circuit could slam it down before any gay couples can get married again.

This is exactly why you should take unsubstantiated tweets with a grain of salt until you actually see proof of something. It’s silly and irresponsible to tweet to all your followers that the motion has been denied, on an issue of this emotional magnitude, just to try and be the first person to break the news, unless you’ve actually read the decision yourself.

Maybe the Ninth Circuit will do the right thing. I hope so. But six days is ages. The Ninth Circuit could overturn Judge Walker tomorrow. Or even tonight.

Tweet responsibly.

The Prop 8 Ruling

I’ve read the Prop 8 ruling, which was of course announced this afternoon.

And you know what? I found it boring.

This is not the first court to rule that a ban on marriage for same-sex couples violates the Constitution. Courts in Massachusetts, Connecticut, Iowa, Hawaii, and, of course, California, have issued similar rulings before, and judges in New York and New Jersey have put forth the same arguments in dissenting opinions. The arguments for marriage equality have been put forth over and over again. How many different ways are there of stating the obvious?

And that is why the arguments are boring — because they’re so obvious. Of course we deserve the right to marry. How can anyone not understand this?

And yet a large but steadily shrinking portion of the country doesn’t seem to get it. Or just plain refuses to.

It’s not really about marriage. It’s about thinking that gay people are just not as good as straight people.

To quote Judge Walker:

In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples.

Not everyone who opposes marriage equality is a gay-hater. Not all of them spew out lies like Maggie Gallagher, who must be a really unhappy and unloved person to spend so much time trying to prevent other people from being happy.

Many people who oppose marriage equality say they have no problem with gay people. They may even say they like gay people. They may even say they like me. They may have gay friends or gay workers and think that they’re perfectly nice people.

Hey, they have such great fashion sense and they’re so entertaining to watch! But, you know, they don’t deserve the same rights that we have. Because, I like them and all, but gay couples are still not as good as real couples. Two men or two women together just aren’t as real or good as a man and woman’s relationship.

I like gay people, but I sure hope my son or daughter doesn’t turn out to be one!

They don’t realize that this doesn’t make any sense, and that it is in fact contradictory. If you oppose marriage equality, then you oppose gay people. If you think, even in a small part of your brain, that gay people are not as good as straight people, then you oppose gay people.

Don’t patronize me. If you don’t think I deserve equal rights, then you have no respect for me, and you have no respect for gay people. Don’t pretend that you do. I don’t want to be friends with you.

So yes, this decision was boring. Nothing new here. Just the same old, crystal clear, logical, obvious arguments.

Even if this case gets to the Supreme Court and we lose — come on, Anthony Kennedy, we’re counting on you! — Judge Walker’s decision will still be right. People need to read it, so they can understand the obvious, self-evident truths.

Stating the obvious is not always interesting. But it is often necessary.