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Part 1 of Rob’s Snarky Play-by-Play of the Prop 8 Hearing

Rob Tisinai

March 26th, 2013

I downloaded the transcript and audio and simply started typing as I listened. I’ve done minimal formatting and proofing so please forgive the many errors. The time codes correspond roughly to the relevant spot in the downloadable audio. Cooper (the anti-same-sex marriage attorney spoke first). I’ll do our side in my next post.

11:00  Cooper begins by saying the Court has to decide whether the Constitution should put  a stop to the ongoing democratic debate and answer this question for all 50 states. Cooper says such a thing can only happen if  “no rational, thoughtful person of goodwill could possibly disagree with them in good faith on this agonizingly difficult issue.”

Agonizing difficult issue? When did that become the position of our opponents? I thought it was supposed to be perfectly obvious that marriage can only be between one man and one woman.

This is the start of their show of reasonableness, their feigned demonstration of no ill-will against gays.

12:00 Cooper brings up Baker v Nelson from 1971, when SCOTUS dismissed same-sex marriage as having no substantial federal question. Ginsburg SMACKS HIM DOWN! Baker was many years ago, even gender-based classifications weren’t part of the law, and homosexuality itself was illegal in some places so “ I don’t think we can extract much in Baker v. Nelson.”

Shorter Ginsburg: “Ain’t NOBODY got time for Baker!”

13:00 Kennedy says he’s struggling with whether Prop 8 is about gender-classification (which requires higher scrutiny) rather than sexual orientation (which does not).

Cooper says no, this is not about gender, it’s about sexual orientation.

14:12 Sotomayor asks:

Outside of the -outside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the Government could make? Denying them a job, not granting them benefits of some sort, any other decision?

And Cooper stuns me by replying:

Your Honor, I cannot. I do not have any — anything to offer you in that regard.

How the hell did that happen? NOM’s favorite lawyer is saying there’s no rational reason to discriminate on the basis of sexual orientation

15:10 Sotomayor springs the trap:

All right. If that -if that is true, then why aren’t they a class? If they’re a class that makes any other discrimination improper, irrational, then why aren’t we treating them as a class for this one thing? Are you saying that the interest of marriage is so much more compelling than any other interest as they could have?

Cooper says that marriage is different because it’s about couples and oppo-sexers and same-sexers are just different kinds of couples. Also, gays don’t count as a “class” as SCOTUS has traditionally defined “class.”

Sotomayor throws up her hands:

So you — so what — I don’t quite understand it. If you’re not dealing with this as a class question, then why would you say that the Government is not free to discriminate against them?

Coopers stumbles about some more and basically comes up with a statement that it’s irrational“arbitrary and capricious” to discriminate against gays in just about everything except marriage.

18:00 Kagan pursues that:

In reading the briefs, it seems as though your principal argument is that same-sex and opposite — opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples cannot, and the State’s principal interest in marriage is in regulating procreation. Is that basically correct?

Cooper says yes, and Kagan says while that might establish a reason for not including same-sex couples in marriage, does he have any reasons for deliberately excluding them? And Cooper says says marriage as a “genderless” institution” could lead to harm.

Kagan asks:

Well, could you explain that a little bit to me, just because I did not pick this up in your briefs.

What harm you see happening and when and how and — what — what harm to the institution of marriage or to opposite-sex couples, how does this cause and effect work?

I don’t know if that’s a snarky question but I like how she phrased it.

AND COOPER DUCKS THE QUESTION! He says the proper question is whether allowing ssm would advance the interest of the state.

In other words  (my words, not Cooper’s), it doesn’t really matter whether ssm would be bad. It’s enough to show that it wouldn’t benefit the State. Because, you know, we only let citizens have their rights when it benefits the State, and screw the Declaration of Independence and its statement that purpose of government is to secure the rights to life, liberty, and the pursuit of happiness.

Kennedy asks if Cooper is conceding that ssm will do no harm.

Cooper: NO! We can’t see the future and can’t know what the conwequences would be, but they would be bad. Think I’m being unfair? I quote Cooper:

it is impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be. And among those real-world consequences, Your Honor, we would suggest are adverse consequences.

And then he says it makes sense for California should “hit the pause button” and wait for more data from states where it’s legal.

21:45 Scalia enters the fray! And he practically out-and-out states that he’s now going to argue Cooper’s position better than Cooper’s being doing (seriously!). Scalia says ssm leads to legalization of adoption by same-sex couples, and we don’t know whether that’s harmful to children, and some states don’t allow such adoption.

Ginsburg points out that California does allow it, making this Scalia’s whole point stupid and moot and why the crap is he wasting our time with this shit.

Scalia wastes a little more time with this shit

Cooper grabs the floating turd life raft and say it’s up to our side to show not just that there will be no harm from ssm but the question itself is beyond debate.

Kennedy brings up the 40,000 kids in CA being raised by same-sex parents: “The voice of those children is important in this case, don’t you think?”

Cooper gives a yeah-but reply, saying we have no evidence about the impact on their kids of letting same-sex parents marry.

Because, I guess, marriage (and that word marriage) is vitally important to the welfare of kids being raised by oppo-sexers but when it comes to same-sexers, well, golly, we just don’t know that marriage would be one bit better than domestic partnerships.

27:00 Breyer breaks in:

What precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile couples of different sexes to marry would not?

Cooper gives us a lesson in vagueness:

The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus, refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples.

Kagan asks about people over 55. Can we ban them from marrying because they don’t do a lot of procreating?

Cooper tries to dispute this.

The chamber laughs at him. They laugh at him.

Cooper struggles to create an argument: We don’t want extra-marital breeding, so any hetero couple who are going to live together for a long time should marry, just so we maintain the norm of people marrying before they live together (really?)

31:40 Ginsburg points out that prisoners can marry even if they can’t ever procreate. Cooper replies that this particular precedent applied to minimum security prisoners who will eventually get out and possibly breed.

And then Cooper’s time was up.

Comments

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Ben in Oakland
March 26th, 2013 | LINK

I’m not listening to the transcript, as I’m sitting in a hospital bed and don’t want to throw up.

But really, if this is accurate.e? NOM is going to have Scalia make the arguments for them?

cowboy
March 26th, 2013 | LINK

Get Well Soon, Ben.

Timothy Kincaid
March 26th, 2013 | LINK

Hey Ben, no being sick today. You want to remember this day for other reasons.

(so get well soon)

Sandhorse
March 26th, 2013 | LINK

Rob said:

“21:45 Scalia enters the fray! And he practically out-and-out states that he’s now going to argue Cooper’s position better than Cooper’s being doing (seriously!).”

WORD!

I guess I never realized just how much Scalia, was a pie eating baby.

In all arguments I’ve viewed, I’ve always seen the judges take a devils advocate (however thinly veiled their true positions were) in their questions.

Scalia is a prime example of someone who is not the least bit interested in even feigning impartiality.

And as no surprise, there no opinion he is more interested in other then his own.

Thanks for putting my thoughts into words, Rob.

For anyone who hasn’t listened to the audio/ read the transcript; this is NOTHING compared to the pompous ignoramus hat he put on while questioning Olsen.

“…when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868?

When? When? How am I supposed to decide this case without a date? When? When?”

What a colossal tool!

Sandhorse
March 26th, 2013 | LINK

Ben,

Let me add to the other well wishes for your quick recovery.

And if you decide that maybe regurgitating may help relieve the symptoms. Scalia has some encouraging words that should help…

Seriously though, get well soon.

Regan DuCasse
March 26th, 2013 | LINK

Oh Ben, my sweetheart. Please get well soon. You know I love you. Take care of yourself!
xoxo

William O'Donnell
March 26th, 2013 | LINK

Thank you for this rundown, Rob! Get well, Ben.

You KNOW that Cooper wanted to blurt out,”BUT JESUS SAYS IN THE BIBLE, that marriage is hetero-hetero!”

Of course he would not be able to raise that point, so the Jesus/NOM institute has to come up with vague, silly, reasons to try to make it work, thus engaging in sophistry.

This has been amusing to read. Thank you.

William

Ben in Oakland
March 26th, 2013 | LINK

Thanks for your concern, all of you, I’m actually fine. I have to take a pill that can have deleterious side effects. I wasn’t willing to take it at home and then figure out how to get myself to a hospital if it I were one of the 5% that it harms. We’ll find out on a few hours.

My only concern about throwing up is that that’s what Scalia does to me. He’s a finger down the throat forthe soul, an emetic in the medicine cabinet of life, last year’s unrefrigerated mackerel, a bit of sushi that long since went to its final reward.

Do you think I am biased?

cowboy
March 26th, 2013 | LINK

Justice Kennedy brought up the issue about children of same-sex couples:

“… there is an immediate legal injury or legal – what could be a legal injury,…” [about the harm same-sex parents are to their children]

And COOPER replies:

“… on that specific question, Your Honor, there simply is no data.”

So, all this hoopla about the Regnerus term paper was for naught? The Pro Prop 8 people didn’t bring that up?

Gerald
March 26th, 2013 | LINK

HELLO?! Was Olson asleep during Cooper’s argument? Go back and re-read what you wrote about Kennedy’s question to Cooper.

Kennedy told Cooper what “I’ve been trying to wrestle with” when he asked him if “this can be treated as a gender-based classification?” Cooper answered (lamely) “No.”

The KEY JUSTICE on the court told everyone in the room exactly what issue he was wrestling with.

And Olson NEVER went back and addressed Kennedy’s expressed concern. OF COURSE it’s gender (sex) discrimination — that’s the ONLY basis that legally keeps same-sex couples from marrying: SEX! No state denies gay people from getting married.

If it’s sex discrimination, then the court must use heightened scrutiny, not rational basis. It must further an important government interest in a way that is substantially related to that interest. Denying same-sex couples the right to obtain a civil marriage does not further any government interest.

Olson dropped the ball by not listening carefully to the one justice who he had to know is critical to his case.

Just a terrible mistake.

Josh
March 26th, 2013 | LINK

Scalia: “…when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868?”

I actually think this is an interesting question. Scalia wasn’t clear on his real point, which was, probably, how should we interpret the Constitution? His answer as a rule is to try figuring out what people at the time would have thought the text meant. Another answer is to try figuring out what the original writers actually meant, and yet another answer is to interpret the words from a modern-day understanding.

So asking when it became unconstitutional to exclude homosexual couples from marriage was probably Scalia’s way of trying to influence the rest of the court towards his interpretation style. If he had gotten a coherent answer he probably had arguments prepared to shoot down anything but a textual interpretation. The way he asked the question made him look like an ass, but he probably doesn’t care; the argument is more important.

I have to admit his style has logical appeal to me. It’s at least consistent. But on a practical level I don’t want the Supreme Court constrained by stupid ideas from hundreds of years ago just because it’s breathtakingly difficult to amend the Constitution. It also seems like a disservice to living people to ignore current interpretations of the Constitution–if it was clear to everyone that equal protection can only be carried as far as someone from 1868 would carry it, perhaps we’d get more amendments more often.

I myself am not sure how to answer his question. I don’t particularly agree with Timothy’s answer in another post; I find it passionate but incoherent–something can certainly be unconstitutional before its effects are felt by anyone, as far as I’m concerned. I suppose my answer is, “sometime in the last few decades, when we as a society decided to protect minorities and legislate equally. The exceptions to this rule only occur when there’s a compelling reason for them, and no compelling reason I accept has been offered in this case.”

Rob Tisinai
March 26th, 2013 | LINK

Josh, regarding Scalia’s question I’d say this (and you may see this again in a blog post):

It would astonish our Founding Fathers that women are on the Supreme Court. But our culture’s understanding of what a woman is has changed. And that has led us to apply the Founder’s principles in a way they did not — but in a way that would presumably approved of had they understood that their conception of a woman’s “place” was not backed up by reality.

And the same has happened with gay people. We’re seen so differently from in our Founders days, going back to Evelyn Hooker and her research showing that gay people are not psychotic deviants.

The Founders were children of the Enlightenment. They believed in knowledge and learning. They’d have been aghast at the notion that we can never apply to new knowledge when applying basic philosophical truths about freedom liberty.

In short: Being true to the Founders’ principles does not require being true to their opinions.

Gerald
March 26th, 2013 | LINK

Josh and Rob:

Kenji Yoshino of NYU had a really good answer to Scalia’s contentious question on Rachel Maddow’s show today, and with a SCOTUS case cite from the 1980s. It’s not posted, and I don’t have a transcript. But it had something to do with the notion that just because a law or institution wasn’t created to discriminate against a particular group, doesn’t mean it isn’t discriminatory later on, if it’s currently being maintained to discriminate.

Priya Lynn
March 26th, 2013 | LINK

Rob said “Josh, regarding Scalia’s question I’d say this (and you may see this again in a blog post):”.

Great answer Rob.

Ben in Oakland
March 26th, 2013 | LINK

You might also have added that they would have been astonished to see a black person on the court, given that back in the day, they were 3/5 of a whole person, though Thomas apparently counts as 5/3, assuming he’s awake.

Sorry, I couldn’t help myself.

Putting the arguments another way, the real issue for someone like Scalia, who claims to be an originalist– he’s not, not with citizens united under his belt– is the idea of progress. The idea hat we could possibly be different than were our founders over 200 years ago, the impiety of believing we could possibly know more about the human condition than our remote ancestors, the unlikelihood that morality was determined once and for all in a culture 8000 miles, 2000 years, and a universe of language, intellect, and understanding away from us.

Gerald, what you’re looking for is the difference between defacto and de Jure discrimination.

Gerald
March 27th, 2013 | LINK

Thanks, Ben. I’m familiar with de facto and de jure. That wasn’t the specific point.

The case cite was Rogers v Lodge (1982), a case about an at-large systems for local elections.

Prof. Yoshino said: “I wish he (Olson) had cited precedent for it, I think it was a slam-dunk for him. It was a case Rogers v Lodge in 1982, that says that even if a system of election is created with a non-discriminatory reason, if it is being maintained for a discriminatory reason in the future, then that in itself can render it unconstitutional. Here the at-large election system was not prejudicial against African Americans, but it was being maintained later on in time in order to ace out African Americans from being elected from various districts. And so the Supreme Court said that even though it wasn’t unconstitutional in its origins it was being maintained for unconstitutional reasons.

http://en.wikipedia.org/wiki/Rogers_v._Lodge

Zeldamina
March 27th, 2013 | LINK

Gerald, I see your point about why it might have been effective for Olson to use the sex discrimination argument. I think that argument would be shot down by pointing out that it is not one sex but both that are equally prohibited from marring someone of the the same sex. Whereas straight people are granted the right to marry those they would likely choose to marry while gay people are not. One class of people is being treated differently than the other, so the court must hold such a law to a higher standard of justification. The latter is an argument that makes judges ears perk up and listen for equal protection issues, whereas I think the former does not because there is not an unequal treatment between classes of people.

At the same time, if he can make a successful argument that non-hetero sexual orientation should be considered a suspect classification, that should open up all kinds of equal protection territory on issues other than just marriage, shouldn’t it?

Gerald
March 27th, 2013 | LINK

Zeldamina:

“…not one sex but both that are equally prohibited from marring someone of the the same sex.”

Sounds like the argument in Loving, and that didn’t go over so well.

A man can marry a woman, but a woman can’t. That’s discrimination based on sex. Just because the discrimination appears to apply equally to both sexes doesn’t mean that there is a legitimate reason to do so.

What would be the legitimate governmental interest in discriminating based solely on the sex of the partners, one that is narrowly tailored to meet that governmental interest?

That’s exactly what Kennedy wanted to know. HE TOLD US that he was “wrestling with” this.

Hoping that he’ll sign on to a ruling that sexual orientation is a suspect class, especially when he was unwilling to do so in Romer and Lawrence, is placing a whole lotta hope on that slim possibility.

You’d get five votes against sex discrimination; you won’t get five votes against sexual orientation discrimination.

Zeldamina
March 27th, 2013 | LINK

But in Loving you could show that the anti-miscegenation laws were part of a systemic disadvantaging of a suspect classification based on race. Central to the court’s decision was the fact that Virginia’s law only applied to marriages involving white people, not marriages between two people of other races who weren’t white. From that ruling:

“There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.”

You can’t show that unequal marriage laws are part of a systematic disadvantaging of a suspect classification based on sex because women are not systematically disadvantaged in relation to men by not being able to marry other women, GAY women are in relation to straight women. If only women were disallowed from marrying people of the same sex, or if only men were disallowed from marrying people of the same sex, you could. Anti-miscegenation laws were founded in racism and white supremacy. Unequal marriage laws are founded in homophobia and heterosupremacy, not sexism and misogyny.

Gerald
March 27th, 2013 | LINK

@Zeldamina:

You wrote: “You can’t show that unequal marriage laws are part of a systematic disadvantaging of a suspect classification based on sex…”

Why should I have to?

My point is that the law discriminates solely on the basis of sex. I said nothing about “unequal disadvantaging”. Even if the discrimination appears to apply equally to both sexes (there aren’t multiple sexes like there are multiple races), it begs the question: what is the legitimate governmental reason to discriminate in civil marriage solely because of sex in the first place?

Two citizens wish to obtain a civil marriage. Restrictions on that right must have some legitimate basis, regardless if the restriction applies to both partners.

Zeldamina
March 27th, 2013 | LINK

Gerald, you don’t have to, but Olson does if he wants to make an equal protection argument on the basis of sex. To argue that something violates equal protection on the basis of sex, it isn’t enough to show that a law takes sex into account in its application, you have to show that in so doing the law disadvantages one sex in relation to the other. For example, the landmark equal protection ruling, Strauder v West Virginia, that addressed exclusion of black men from juries, didn’t do it on the basis of the fact that race was being used as a determination of who could serve on the jury, but on the basis of the fact that the result was substantive harm to black defendents. That may sound like splitting hairs, but it’s a really important distinction legally because it means that laws can be written that take things like race and sex into account, but that they are not constitutional if in so doing that do harm on the basis of sex (in the former case) or race (in the latter case).

If it is not women who are being disadvantaged, but gay people, Olson has no choice but to make his equal protection argument about sexual orientation, not sex. Olson rightly calculates that if he goes down the sex-discrimination route in his argumentation, he’ll lose because he would then have no basis for making an equal protection complaint.

Zeldamina
March 27th, 2013 | LINK

Or take Brown v. Board of Education. There they had to show that separating black kids from white kids in education resulted in unequal education for black kids. From Warren’s opinion:

“To separate [children in grade and high schools] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone…. We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”

You have to show that a lack of equality between two classes of people in the result, not merely in the application, of the law in order for the argument to work as an equal protection argument. Women are not the class whose enjoyment of marriage is unequal, gay people are.

Zeldamina
March 27th, 2013 | LINK

Also, you have to show that the disadvantage is borne systematically by an entire class of people. So showing that some individual women are disadvantaged isn’t enough, you have to show that women as a class are not receiving equal protection under the law in comparison to men as a class. That the functioning of the law is essentially to reinforce male supremacy.

How would Olson argue that?

Gerald
March 27th, 2013 | LINK

@Zeldamina:

Thank you for your time and detail in your response. I am informed by your response, but not persuaded yet.

I am also informed by Ilya Somin’s arguments on this issue here
http://www.volokh.com/2013/03/26/justice-kennedy-on-proposition-8-and-sex-discrimination/

and here
http://www.volokh.com/2012/02/07/same-sex-marriage-bans-and-sex-discrimination/

He addresses your concerns better than i can.

“Many commenters seem to be assuming that, in order for a law to qualify as sex discrimination, it has to be motivated by hostility to men or women. Not so. As the Supreme Court puts it, a law can qualify as unconstitutional sex discrimination so long as it is a”statutory classification… that distinguish between males and females.” Similarly, a racial classification counts as racial discrimination for constitutional purposes even if the motives behind it are benign.

It is also not true that a ban on same-sex marriage avoids qualifying as sex discrimination because it affects members of both genders. It still denies rights to both men and women solely on account of their sex. The fact that Bob cannot marry Colin solely on account of gender is not somehow “balanced” by the fact that Anne is similarly forbidden to marry Carol. Similarly, a law banning interracial marriage still qualifies as race discrimination even though both blacks and whites are barred from marrying members of the other racial group.”

Zeldamina
March 27th, 2013 | LINK

Ooo thanks for the links, I will read them tomorrow and come back to this discussion. I’m learning a lot from it!

Zeldamina
March 27th, 2013 | LINK

Though to be clear, I’m not talking about the motives so much as I’m talking about the results (though courts have indeed taken motives into account in equal protection arguments, as they did in Loving, they have done so largely in order to underline their justification for concluding that the actual results of the law were indeed discriminatory). But since I didn’t see the excerpt in context, I don’t know yet if that point applies to my argument or not.

Will get to reading!

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