Part 2 of Rob’s Snarky Play-by-Play of the Prop 8 Hearing

Rob Tisinai

March 26th, 2013

Now I’m going to go through Olson’s attack on Prop 8. As before I simply started typing as I listened so please forgive the many typos.

33:00 Olson starts off by saying this of Prop 8:

It walls-off gays and lesbians from marriage, the most important relation in life, according to this Court, thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal, and not okay.

Then the Court directs him talk about standing (i.e., the question of who has the right to defend Prop 8 in court) before he gets to the merits. I’ll skip that because it’s technical legal stuff not specific to marriage equality.

41:30 We get back to the merits. Olson says what I’ve been dying to shout at Cooper and everyone else who demands we justify our rights by showing they’ll benefit the State:

This is a measure that walls off the institution of marriage, which is not society’s right. It’s an individual right that this Court again and again and again has said the right to get married, the right to have the relationship of marriage is a personal right. It’s a part of the right of privacy, association, liberty, and the pursuit of happiness.

And let me say that Olson is one articulate MoFo. I’ve sped up the audio by 40% as a I listen, and it makes everyone’s slow, deliberate, halting legal-speak sound like a normal conversation pace, but not Olson – Olson is so sharp, confident, and prepared that at 140% speed his clear and well-constructed sentences just fly by!

42:20 Olson says that the state’s interest in procreation is not part of the right to get married. Roberts jumps in to say “When the institution of marriage developed historically, people didn’t get around and say let’s have this institution, but let’s keep out homosexuals.”

Whoa! Marriage developed historically? This conservative justice is forgetting that marriage didn’t develop historically, but was ordained by God 6000 years ago and hasn’t changed since. Anyway, Roberts goes on to say that just because marriage can serve some interests of same-couples, but not all the interests, then you don’t have to include everybody just because of some of the interests apply to them.

Olson says there are a couple of answers to that, which is good, because Roberts’ comment was one hot mess.

First Olson points out the big DUH: in this case, people DID say, “Let’s exclude the homosexuals.”

Roberts answers (and I quote): “Oh, that’s only because Proposition 8 came 140 days after the California Supreme Court issued its decision.”

Again: DUH. That supports what Olson is saying. Roberts replies that it’s more reasonable to say this whole thing is “a change by the California Supreme Court [referring to its pre-Prop 8 decision that the state constitution required same-sex marriage rights, which then led to Prop 8’s amending of said constitution] of this institution that’s been around since time immemorial.” Crap, isn’t this the same guy who was just talking about how marriage “developed historically”?

Olson denies that this is some change made up by the CA State Supreme Court; rather,the Constitution’s Equal Protection Clause does not allow excluding gays and lesbians from marriage.

43:50 At this point, Scalia jumps out of his seat, leaps onto the table, points a righteous finger at Olson, and shouts, “WHEN? When, when, WHEN?”:

I’m curious, when -when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

Olson pushes back, “When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?”

And he throws Scalia one giant SNAP.

Scalia keeps demanding to know when?? Olson basically says it became unconstitutional when “we as a culture decided sexual orientation is a characteristic of individuals that they cannot control,” thus changing the status of gays in our legal system.

Scalia: Wheeeeen??????? How can I do my jooooob???????? If you don’t give me an exact daaaaate??????????

Olson: Dude, there’s a frickin’ case in front of you today.

Back and forth, back and forth.

We get into a long run on the issue of whether Prop 8 is only unconsititutional because it took away rights that had already been granted. Olson’s position is that this is one reason it’s unconstitutional, and SCOTUS can write that opinion, but that it’s unconstitutional even without that, because marriage is a basic right.

49:30 Eventually, Olson gets to this:

To the extent that my opponent, in the context of California, talks about child-rearing or adoptions or — or of rights of people to live together and that sort of thing, those arguments can’t be made on behalf of California, because California’s already made a decision that gay and lesbian individuals are perfectly suitable as parents, they’re perfectly suitable to adopt, they’re raising 37,000 children in California, and the expert on the other side specifically said and testified that they would be better off when their parents were allowed to get married.

In other words, because CA’s domestic partner law gives same-sexers all the legal (state-level) benefits of marriage, CA can’t logically argue a reason for not granting them marriage.

Roberts says it’s all about the label then. Olson says the label matters. Then we get this interesting exchange that I can’t quite follow.


If you tell — if you tell a child that somebody has to be their friend, I suppose you can force the child to say, this is my friend, but it changes the definition of what it means to be a friend. And that’s it seems to me what the — what supporters of Proposition 8 are saying here. You’re -all you’re interested in is the label and you insist on changing the definition of the label.


It is like you were to say you can vote, you can travel, but you may not be a citizen. There are certain labels in this country that are very, very critical. You could have said in the Loving case, what — you can’t get married, but you can have an interracial union. Everyone would know that that was wrong, that the — marriage has a status, recognition, support, and you — if you read the test, you know –

52:50 This goes nowhere. For a while. Finally Sotomayor decides she’s tired of these two men and brings down the hammer:

Mr. Olson, the bottom line that you’re being asked — and — and it is one that I’m interested in the answer: If you say that marriage is a fundamental right, what State restrictions could ever exist? Meaning, what State restrictions with respect to the number of people, with respect to — that could get married — the incest laws, the mother and child, assuming that they are the age — I can — I can accept that the State has probably an overbearing interest on — on protecting a child until they’re of age to marry, but what’s left?

Once again, Olson is worth quoting in full:

Well, you’ve said — you’ve said in the cases decided by this Court that the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing. And if you — if a State prohibits polygamy, it’s prohibiting conduct. If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status. It’s selecting them as a class, as you described in the Romer case and as you described in the Lawrence case and in other cases, you’re picking out a group of individuals to deny them the freedom that you’ve said is fundamental, important and vital in this society, and it has status and stature, as you pointed out in the VMI case.

Basically, there’s a difference between a law that targets a behavior and a law that targets a class of people. I think of it this way. Laws against thievery are fine, because thievery is a behavior, and thieves are simply people who do that behavior. But laws that target gays and lesbians are not okay, because “gay” is not a behavior, but a state of being. For instance, I’ve had sex with two women, but I was gay the entire time I was doing it.

Sotomayor moves on from her question because Olson is awesome. She asks if there’s any way the Court could “decide this case in a principled manner that is limited to California only.” Yes, that’s what the 9th Circuit did.

54:30 Kennedy worries that Olson is asking the Court to venture into uncharted waters. Olson say they did so when they struck down bans on interracial marriage, but Kennedy said interracial marriage had existed for centuries elsewhere, so it wasn’t really as uncharted as Olson would like you to think.

But Olson realizes he’s at his time limit and closes up with a great statement about why our nation’s Constitutional view of same-sex marriage can change and should change:

I — I respectfully submit that we’ve under — we’ve learned to understand more about sexual orientation and what it means to individuals. I guess the — the language that Justice Ginsburg used at the closing of the VMI case is an important thing, it resonates with me, “A prime part of the history of our Constitution is the story of the extension of constitutional rights to people once ignored or excluded.”


March 26th, 2013

Thank you for doing these play-by-plays, it was really nice to be able to read something like this while at work and eager to connect with what was going on in DC.

I am wondering if anyone here has any idea what the implications of the standing issue are. That’s actually the route I’ve expected the court to go since I knew they were hearing these two cases, and I worry for a number of reasons about that.

I understand why you skipped over that, but since everyone is saying that the court may use it as a way to avoid making a broader ruling, I’m wondering what the implications of that would be. If the court cannot hear a case in which the state refuses to contest a lower court ruling against state law or, in this case, a change to the state constitution, that seems to me like it cedes enormous power to the executive branch of the state government to basically throw their hands up and go “we agree, we don’t like this law either.” That such a ruling would be extremely beneficial to me in this specific instance doesn’t make that procedural issue less worrisome to me. More importantly, I wonder if Kennedy will get over his resistance to making a broader ruling by reconsidering the implications of an objection based only on standing.

Patrick C

March 27th, 2013

It’s a shame Olson is not familiar with the anthropological literature. Same- sex marriages have existed for millennia. The notion that it is new needs to be destroyed once and for all.


March 27th, 2013

“Hot mess” is right about Roberts. At least Scalia was coherent in his cattiness. It took me forever to parse Roberts’s inane babbling.

It’s surprising and a shame, because he apparently used to be known as gay-friendly (Romer v Evans).


March 27th, 2013

Marcus, what do you mean by “he apparently used to be known as gay-friendly (Romer v Evans)? Is “he” Scalia or Roberts?

I’d have to check, but I thought Scalia dissented in Romer and Roberts was not on SCOTUS when Romer was decided. Even if Scalia was in the majority in Romer, he is hardly gay-friendly. Just wondering.


March 27th, 2013

@jpeckjr: I meant Roberts. His law firm assigned him to do pro bono work assisting the anti-discrimination side of Romer v. Evans. That itself doesn’t mean he’s gay-friendly, but according to the lead lawyer on Romer, “everybody” recommended Roberts to her as someone who could convince a conservative court to support LGB rights:

“Everybody said Roberts was one of the people I should talk to,” Dubofsky said. “He has a better idea on how to make an effective argument to a court that is pretty conservative and hasn’t been very receptive to gay rights.”


March 27th, 2013

Straight men can’t marry other men? So that kinda messes up Olson’s argument of conduct/status, no?


March 27th, 2013


WHY would a straight man want to marry another man? If it’s for “legitimate” reasons, then the man is not “straight.”

This is a straw (straight) man argument.

In fact, you do lead me to a related point…

There are perhaps thousands of “sham” opposite sex marriages of convenience (for reasons of immigration status, health benefits, to “fake out” relatives for inheritances, etc.). Technically, these are all illegal (and can be prosecuted if found out). That is because these are CONDUCT.

Two people who want to marry for the benefit of combining into one household, raising children, caring for each other, etc., are not breaching conduct–they just want to marry and their same/opposite sex status should not matter.

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