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Queer Talk: Prop 8 SCOTUS Argument Audio, Transcript, Analysis *UPDATED*

March4MarriageSCOTUSViaGoodAsYou

UPDATE

A few more of the many stories, analyses and commentaries out today:
From Good As You, Jon Tester (D-MI) came out today in support of marriage equality.

That leaves only nine or ten senate Democrats who have yet to embrace history’s right side.

At Talking Points Memo, “Supreme Court Sharply Divided On Whether States May Ban Gay Marriage.”

ABC News, “Supreme Court Justices Struggle With Federal Right to Gay Marriage.”

Justice Elena Kagan … asked the lawyer defending California’s gay marriage ban what harm would be done to heterosexual marriage if gay and lesbian marriages were legally recognized. He answered that same-sex marriage would do harm that is difficult now to foresee. …

Some justices questioned the main argument against gay marriage, that the government has a societal interest in traditional marriage for ‘responsible procreation.’

Kagan asked about marriage licenses issued to heterosexual couples who are older than 55. ‘Not a lot of children’ come out of such marriages, she said.

Justice Ruth Bader Ginsburg asked about heterosexual couples locked up in prison. ‘No possibility of procreation there,’ she pointed out.

The Christian Post has “Huckabee: Evangelicals Will Leave If GOP Backs Gay Marriage.”

And at The Nation, “The Supreme Court Is Fractured on Prop 8.”

The Supreme Court argument in the California gay marriage case in a word: fractured. The Justices steered arguments back and forth between standing questions (whether a private group of Prop 8 proponents could assume the mantle of state officials to defend Prop 8) and the constitutional merits: whether it is permissible for a state to deny gay couples access to marriage. Toward the end of the argument, things got even more fractured, as Justices debated with the lawyers and among themselves whether unconstitutionality was an all or nothing proposition, or whether, paradoxically, only states like California that have extended all marital rights except the label itself would be forced to go all the way to full equality, leaving for another day the question of whether states that offer no legal protection were acting constitutionally.

Original Post

Via SCOTUSBlog, you can read the entire transcript of today’s Proposition 8 / Hollingsworth v. Perry here.

The audio, is at the Supreme Court website.

Some analysis:

Lyle Denniston, at SCOTUSBlog:

Supreme Court Justice Anthony M. Kennedy, in an unusually candid process of elimination of options in public, on Tuesday worked his way through the ways for dealing with California’s Proposition 8 ban on same-sex marriage and seemed strongly tempted to just take a pass. He appeared to be troubled about the Court entering ‘uncharted waters,’ on the core issue of who may marry, but at the same time, he also did not look comfortable with any of the other, more limited options. So he openly wondered why the Court had agreed even to hear this case.

Denniston enumerates “ the range of options the Court was facing in the Proposition 8 case, and how the Justices reacted to each.” 1. “The nationwide solution”; 2. “The eight-state solution”; 3. “The California-only solution”; 4 “The jurisdictional solution.”

Kerry Eleveld, at The Advocate, writes “5 Big Takeaways From Inside the Supreme Court’s Prop. 8 Hearing.”

Biggest takeaway: The justices had so many options on the table that it was nearly impossible to discern where they were headed with their inquiries. …

Best exchange: Justice Sonia Sotomayor asked the proponents’ lawyer, “Outside of marriage,” can you think of any other rational reason for denying gays and lesbians certain rights, such as denying them a job or a housing? Cooper conceded, “Your honor, I cannot.” If that is true, she responded, “why aren’t they a class?” …

As expected: Justice Antonin Scalia did go on a rant of sorts, insisting that Olson explain, ‘When did it become unconstitutional to exclude homosexual couples from marriage?’ Olson offered, respectfully, ‘When did it become unconstitutional to prohibit interracial marriage?’ …

Most notable: Justice Anthony Kennedy, the ‘swing’ vote, asserted rather passionately for an otherwise stoic judge that ‘there is an immediate legal injury’ if same-sex couples continue to be excluded from entering legal marriages. …

Not to be overlooked: Standing is a real question in this case, and the justices grilled both Olson and Charles Cooper, the lawyer for proponents.

At Think Progress, Ian Millhiser has “The Justices Are Not Ready To Bring Marriage Equality To Alabama, And They Want Prop 8 To Go Away.”

… (T)he question of whether California’s same-sex couples enjoy the blessings of liberty was rapidly eclipsed by a different, unspoken question – whether gay couples in Alabama also enjoy those rights. Three justices, Roberts, Scalia and Alito asked hostile questions to the attorneys supporting equality and appear very unlikely to vote against Prop 8. Similarly, while Thomas was characteristically silent, no one expects him to break from his past, anti-equality opinions in gay rights cases. Of the remaining five, at least three spent much of the argument grasping for ways to limit the scope of a decision striking down Prop 8. …

By the end of the argument, a majority of the Court seemed to believe that they shouldn’t even be hearing this case in the first place. …

In other words, the most likely answer to the question of whether Prop 8 is unconstitutional is that the Supreme Court will not answer this question at all. Too many of the five justices who appeared open to marriage equality posed too many questions about whether now is the time to bring equality to the nation as a whole, and they did not appear satisfied with any of the theories offered to limit their decision to just some of the states.

And, from Freedom to Marry:

It would be unwise to speculate on what the Supreme Court will decide in Hollingworth v. Perry, or to read too far into the back-and-forth from today’s oral arguments. Instead, we must await further instruction from the Court and, in the meantime, continue showing why marriage matters and sharing the moving and powerful stories of same-sex couples and their families. It’s clear that several of the judges are wrestling with multiple questions and levels of understanding in the case.

… It’s always impossible to predict what the court will do, and in this specific case, with so many different possible directions, it’s even more difficult to speculate. But the fact that we’ve gotten this far is a strong indicator of how far the marriage movement has come in changing people’s understanding of why marriage matters, and it shows how successfully the marriage movement has proceeded. As long as we continue our efforts, we have a lot of hope going forward.

So maybe it’s a matter of whether the Supreme Court justices are ready, or not, to take an actual vote on marriage equality. There’s always been the big possibility, maybe likelihood, that a “narrow decision,” regarding Prop 8 and DOMA, would be what we see happen. I don’t think “narrow” steps into equality is a bad thing. A bit disappointing, perhaps, but most victories are built over time. And we’re on the way to victory. It’s a matter of time, and of continuing the work of advocacy.

And hey, if the Prop 8 and DOMA decisions, either or both, turn out to be bigger, then we’ll certainly celebrate that.

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2 Responses to Queer Talk: Prop 8 SCOTUS Argument Audio, Transcript, Analysis *UPDATED*

  1. Taylor Marsh March 26, 2013 at 4:49 pm #

    GREAT coverage, Joyce. Thanks so much.

    The Think Progress headline is precious.

    • Joyce Arnold March 26, 2013 at 5:35 pm #

      That headline was my favorite of the day :)

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