Like a fair number of progressive lawyers, I've been following the Prop. 8 case for quite some time. I read Judge Walker's opinion at the trial court level, read the opinion in the 9th Circuit, and now have read the transcript of today's hearing in the Supreme Court. So, as an attorney, specifically a trial attorney, I'd like to share the following thought:
The proponents of Proposition 8 totally fucked up their case. I don't mean the attorney for the proponents fucked up today, but the proponents themselves fucked up their case completely. And much to everyone's chagrin, we're going to have to do this all over again.
Before I get too deep into the waters, here is some background: in 2008ish the California Supreme Court held that California's same-sex marriage ban was unconstitutional under the California Constitution because it violated California's equal protection clause and the right of privacy clause. The Court decided this based upon the fact that California had more or less granted all the rights to the same-sex couples as straight couples except for marriage, and thus, there is no rational basis to not allow gays to marry (more on this analysis later). Shortly thereafter, the voters approved Prop. 8, which amended that California Constitution to specifically prohibit same-sex marriage. While there was some back and forth about the proposition's legality, ultimately, the proposition was upheld.
Meanwhile, Theodore Olsen and David Boies, who represented both sides of the Bush v. Gore case (and who are at the absolute top of the legal profession), decided they were going to challenge Prop. 8 in Federal Court. This was viewed as absolutely crazy because the Supreme Court is viewed as being very conservative. But they did it anyway, and lucked out in getting Judge Vaughn Walker. Not because Walker is gay (though he is), but because Walker was absolutely diligent. Rather than issue decisions on a summary judgment, or by pure motion practice (lawyers filing briefs with the Court), he held a trial. A full, 12-day trial with witnesses, etc.
And that trial was the beginning of the problems for the proponents of Prop. 8. Initially, Prop. 8 proponents had 8 witnesses set to testify, and then six of them chickened out. The two who did testify was a guy with an engineer's degree testifying about sociological impacts of same-sex marriage, and a political science professor who testified that gays had some political power in California. That was it. Of all the evidence the Proponents could have put before the Court, they selected two guys who Judge Walker either deemed untrustworthy or irrelevant.
Thus, we have fuck-up number 1 - they selected witnesses who were completely incompetent on the issue. This is a key point because in the record before the Court is that the California ban on same-sex marriage has no merit, Judge Walker ruled that there was no rational basis for the ban. The 14th Amendment guarantees equal protection under the law, and so, anytime the law discriminates against a class of people, the state has a duty to prove that the law itself has some sort of rational basis beyond discrimination. Again, here, there was none evidence of a rational basis. The Proponents appealed.
The 9th Circuit caught onto this fact, and noted that same sex couples in California are allowed to enter into domestic partnerships, allowed to adopt children, are protected from discrimination by private individuals and by the state. So, what's in a label for California?
But here's where fuck-up no. 2 comes into play - the Proponents appealed the decision on their own behalf. Meanwhile, the State of California saw the decision of Judge Walker and decided they were cool with it, and refused to appeal. This is key because under Federal law, specifically Article III of the Constitution, requires that participants in Federal Court have to have standing - that is, have a real stake in the litigation. Random guy may be pissed about same-sex marriage, but ultimately, he's not affected by it. Sure enough, the very first question out the gate at the Supreme Court from Chief Justice Roberts was all about standing. Oops.
Now this is a fuck-up because private entities CAN challenge decisions like Judge Walker's decision overturning Prop. 8. Its just that those entities have to be organizations who's organization statement directly opposes same-sex marriage. Under the Supreme Court's case of Haven's Realty v. Coleman, Fair Housing organizations have standing to bring lawsuits because acts of housing discrimination violate the organization's purpose (to end housing discrimination). Thus, if one of the MANY organizations who oppose same-sex marriage (such as NOM) were the petitioners to the Supreme Court, there would be clear standing.
So, there is no good evidence in California that the same-sex marriage ban has any rational basis (other than gays are icky), and the wrong people are challenging the Court's ruling. Double oops.
At the same time, it couldn't happen to a nicer bunch of homophobes. After all, these are people who want to prohibit same-sex marriage. There really isn't a rational basis for any sort of ban beyond our own homophobia.
As far as today's argument went, I thought Olsen did a great job at the argument today, but I have one quibble - when he was asked by Justice Scalia when a ban on same-sex marriage was unconstitutional, he asked rhetorically, "When did the ban on interracial marriage become unconstitutional?" Which is a good rhetorical device, but it didn't drive home the point - same-sex marriage bans have been unconstitutional since the 14th Amendment was adopted, BUT, we only figured this out recently. Prior to that time, we, judiciary included, were blinded by our own homophobia. Just like a ban on interracial marriage should have always been deemed unconstitutional, but it was upheld by racist jurists. That should've been Olsen's point.
And here is where I sound a bit odd - like Scalia, I think of the Constitution as a "dead" document. Meaning that once the words are written on the page, they stay there. But, and this is where I differ, our interpretation of the Constitution changes based on the evidence presented to us. Thus, the First Amendment applies to blogs like this one, even though the Framers could never have imagined the internet. But I'm digressing. . .
I think that the Supreme Court is going to punt on this issue. Whether its holding that the Petitioners lack standing, or finding narrow grounds for upholding the 9th Circuit, the Supreme Court isn't going to jump into the fire. This is because Justice Kennedy isn't ready to pull the trigger, and Chief Justice Roberts doesn't want the Supreme Court to gain any more notoriety. Upholding a ban on same-sex marriage (and thus invalidating a finding of fact), or supporting same-sex marriage nationwide may be too much for the Court.
That said, the Olsen-Boies strategy of bringing a lawsuit under a state law, then trying the issue in open Court and obliterating the rationale of the anti-gay proponents of such bans is very, very good. And it will probably continue on for quite some time. If anything, Olsen and Boies screwed up by choosing California as the test run, and not Alabama (or Kansas, etc). Had they tried this case in Kansas, the Supreme Court's rationale would necessarily have to be broader than this one. But that's another case.