Tuesday, March 26, 2013

US Supreme Court Hears Oral Argument On Prop 8 And DOMA

In the unlikely event you have not heard, today the US Supreme Court begins hearing oral argument on two gay marriage related cases--one with regard to California's Proposition 8 and the other with regard to the federal Defense of Marriage Act. While either one of these cases alone would be a big deal, the fact that the Court is hearing both has some speculating that these oral arguments will be historic hallmarks in the battle for equal rights for gays. There are any number of possible outcomes which have been over-analyzed by the media in the last few weeks, but we want to know what you think.

Although you can find coverage on it just about anywhere, here is CNN's live blog which is updating throughout the two hearings. Also, the Supreme Court has indicated it will have audio recordings of the oral argument up on its website within two hours after the hearings if you want to hear it yourself.

What are your predictions and thoughts?

ed.  The audio and written transcripts for Hollingsworth v. Perry (Prop 8) from today are already available here.


  1. 10th Amendment issue, end of story. Leave it up to the states (most of them are legalizing it already).

  2. Las Vegas has finally focused on the issue they care about-it is losing money on the gay marriage business.

  3. @9:08,

    Sure. 9/50 is "most." Didn't you know? Just ignore the 39 that have prohibited it by statute or constitutional amendment.

  4. 8:11,

    Really? The 10th Amendment doesn't give states unlimited latitude to do whatever they want. The 14th Amendment, as you'll recall begins with the words, "NO STATE SHALL..."

    I hope Prop 8 is struck down under the equal protection clause, but having just listened to the standing arguments, it's very possible that SCOTUS will strike Prop 8 on standing.

    Either way, marriage equality is now inevitable, whether by the courts or ballot box.

  5. @11:15--- I think you are correct in what the decision will be but inaccurate in its effect. SCOTUS will decline to do anything on Prop. 8 due to the standing issues and will simply dismiss the appeal. SCOTUS under those circumstances will not "strike Prop 8"; it just wont do anything on the constitutionality of Prop. 8. The distinction is important because it will keep the question open regarding constitutionality of such state laws. In this way, marriage equality will remain a state issue subject to democratic process.

  6. What's going on in the trial against HPN?

  7. Banning gay marriage is a violation of the equal protection clause. End of story.

  8. 9:25--how so? LGBTs have equal protection under the law to marry a member of the opposite sex, just as anyone else. The problem with your position is that is presumes that marrying the same sex is a constitutionally protected right. Even Ted Olsen couldn't say when that right accrued, nor would he say it was there all along.

    It's a big mess. I predict the Court will find a way to limit its ruling on Prop 8 to California and will punt on DOMA, allowing the states to work this out on their own.

  9. Yeah, Olson's answer on when the right accrued sucked. He should have given a straightforward answer- WHEN THE 14th AMENDMENT WAS RATIFIED. PERIOD.

  10. Here's how this argument pans out:

    Marriage definitions, although not discriminatory on their face, do disparately impact LGBT. However, EP clause doesn't forbid policies that lead to disparities. Arlington Heights v Metro. So, no, banning gay marriage doesn't violate EP. And, no, Lawrence v. Texas doesn't help. Banning buggery by gays but not straights raises an EP problem, according to
    O'Conner. So if the issue was banning marriage BY gays but not straights, there's be an EP issue. Gays are freely entitled to marry, as that term is defined under state law.

    Now can we go back to talking about salaries, where the best place to take associates/clerks to eat is, and who is jumping which ship?

  11. I am jumping ship. Where should I land? I am super awesome, I promise.