Oral Argument for Prop 8 Case Expanded

When the Supreme Court hears oral argument in a case, it’s ordinarily only for one hour — 30 minutes for each side. But because of the very complex nature of the two marriage equality cases, court observers expect the court to extend that time to get all the issues in. They’ve started in the Prop 8 case by allowing the DOJ to intervene and have time to make their case. Solicitor General Donald Verilli will argue the same thing they did in their amicus briefs, that same-sex marriage should be considered mandatory in those states that have civil unions already but not everywhere:

“The President and Attorney General have determined that classifications based on sexual orientation should be subject to heightened scrutiny for equal protection purposes.”

“Private respondents, committed gay and lesbian couples, seek the full benefits, obligations, and social recognition conferred by the institution of marriage. California law provides to same-sex couples registered as domestic partners all the legal incidents of marriage, but it nonetheless denies them the designation of marriage allowed to their opposite-sex counterparts. Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest. Proposition 8 thus violates equal protection.”

“Seven other states provide, through comprehensive domestic partnership or civil union laws, same-sex couples rights substantially similar to those available to married couples, yet still restrict marriage to opposite-sex couples.”

“[Marriage] confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match.”

This is, as I’ve noted before, a rather odd position, one that is clearly more strategic than principled. It’s a pretty strange position to argue that it violates the Equal Protection clause to allow gay people to enter civil unions but not full marriage, but it doesn’t violate the Equal Protection clause to deny gay people either civil unions or marriage.

You can see a list of all the attorneys involved in oral argument in both marriage equality cases and what position they’ll be arguing here.

15 comments on this post.
  1. oranje:

    *trying not to be immature… trying not to be immature…*

  2. Gregory in Seattle:

    Solicitor General Donald Verilli will argue the same thing they did in their amicus briefs, that same-sex marriage should be considered mandatory in those states that have civil unions already but not everywhere.

    That is some mighty fierce advocacy for LGBT rights, President Obama. Mighty fierce.

  3. doublereed:

    That makes sense. It basically sounds like a Separate But Equal argument, which you can only get if you have civil unions to begin with.

  4. slc1:

    That’s not the ruling from the 9th Circuit, which was based on the fact that the right to same sex marriage was given and then taken away by Proposition 8 in California and that it’s unconstitutional to extend a right and then take it away. In the unlikely event that the justices accepted the Justice Department’s position, that would extend the 9th Circuit ruling beyond California to states like Colorado and New Jersey that recognize same sex civil unions. Thus, I would have to disagree with Mr. Gregory in that the Justice Department is asking the court to go beyond the narrow ruling from the 9th Circuit.

  5. janiceintoronto:

    Can’t the court just say, “Marriage Equality is a constitutional right? End of story.

    Think of all the $$ and time that would save.

    You’d even be moving up to Canada’s standards. /snark

  6. Abby Normal:

    but it doesn’t violate the Equal Protection clause to deny gay people either civil unions or marriage.

    Who is making that argument? Denying the label “marriage” to people with civil unions is discriminatory under the “separate but equal is inherently unequal” principle. That does not imply that denying both isn’t also discriminatory. It appears to me that the broader question is simply not being considered at this time. But I haven’t been following this case lately. So my first sentense is an honest question.

  7. jasonfailes:

    “..the very complex nature of the two marriage equality cases…”

    Point: Any two consenting adults should have equal rights under the law.
    Counterpoint: Eeeeeeewwwww! And my imaginary friend agrees with me!

    It’s only complex to the extent that it’s convoluted.

  8. Phillip IV:

    I bet it was the lawyers for the defense that asked the court for an extension. Their arguments already seemed pretty tired the last time around, and haven’t gotten any rest since then, so you can’t really expect them to move as quickly as fresh arguments. Let’s hope they are finally re-tired after this.

  9. slc1:

    Re janice @ #5

    Not going to happen with scumbags like Antonin Scalia on the Supreme Court. IMHO, as a non-lawyer and non-expert on Constitutional law, I suspect that the court is going to find a way to punt, in effect kicking the can down the road. Certainly, the results of the referenda in Maryland, Washington State, Maine, and Minnesota indicate that the tread is in the direction of recognizing same sex marriage at the state level and, as a wag once said, the Supreme Court follows the election returns.

  10. Randomfactor:

    I suspect that the court is going to find a way to punt

    (cough)Standing(cough).

  11. dingojack:

    How long does it take to say: “I think Homobuttseks is iccky, and I must report that the voices in my head say the same”? 20-30 seconds tops. And the rest of the time will be used doing sudoku? Crosswords? Charades?
    Dingo

  12. slc1:

    Re dingojack @ #11

    In fairness, Hererobuttseks is not non-iccky either.

  13. fastlane:

    This may be one that the SCOTUS doesn’t punt on, IMO. I think even the ideologues like Scalia can see the writing on the wall, that SSM is becoming more of an equal rights issue and the majority of the population is for it. I don’t think that means it will be a unanimous decision, but enough of the justices might want to be remembered in history as not being spineless cowards, and being on the right side of the argument, that we may see an actual decision rendered on this.

    I look forward to the wailing and gnashing of teeth from the religious if it does go the way I expect.

  14. dingojack:

    SLC – double negatives? Really?
    :) Dingo

  15. Stacy:

    Can’t the court just say, “Marriage Equality is a constitutional right? End of story

    Not going to happen with scumbags like Antonin Scalia on the Supreme Court.

    Yeah, they should, but I gather the lawyers tailor their arguments to the Court they have, not the Court they should have.

    I like the track taken by Eddie Tabash in CFI’s amicus brief in support of SSM in California (back in 2007):

    “Confining marriage to heterosexual couples serves no secular propose. Gay and lesbian couples in committed relationships are entitled to the same benefits as heterosexual couples.” He added that “although some religious institutions object to same-sex marriage, a fundamental principle of our society is that religious beliefs cannot dictate the content of our laws.” The amicus brief presents convincing evidence, including legislative history, demonstrating that the ban on same-sex marriages is based on, and motivated by, religious doctrine.

    –and therefore forbidding SSM violates the First.

    http://www.centerforinquiry.net/newsroom/center_for_inquiry_files_amicus_brief_in_support_of_same_sex_marriage/

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