By Larry Levine 

This isn’t “blogging,” is it?  I’ve never blogged.  Nor do I think I have I ever written the word “blogged’ before.  But because I had the good fortune to attend oral arguments in the Prop 8 case and the DOMA cases on Tuesday and Wednesday, I feel some obligation to make an effort to share some of my observations.  I will call it “sharing.”

I start with this disclaimer:  it is often foolhardy to try to predict the outcome of a case based on the oral argument.  I left the oral argument in Lawrence v. Texas with absolutely no idea of how the Court would rule.  Further, I had no sense of Justice Kennedy’s position in the case let alone any inkling that he would ultimately author the most important and far-reaching gay rights decision in the Court’s history.

So, with that in mind, here are some of my observations, briefly.

I left both oral arguments completely perplexed.  Neither went at all as I had expected.   And in neither is there any sort of apparent consensus among the justices as to their resolution.  I really wish I could have been a fly on the wall at last Friday’s conference.

I was reminded that this is a very conservative court.

The Chief Justice particularly came off as deeply conservative and is less likely to support the happy result in these cases than I expected prior to the oral argument.  Roberts criticized President Obama for enforcing DOMA even though he had concluded it was unconstitutional (though I thought the Administration did this to provide the courts a chance to weigh in), chastising the President for not following his convictions.  And Roberts ended the DOMA oral argument with a peculiar rant about how politically powerful gays are noting that politicians are “falling all over themselves” to support the gay community.  Maybe he doesn’t know gay and lesbian people can be fired from their jobs just for being gay in most states in the country.  I interpreted this and a few other of his remarks as making it clear that he will not be supporting any sort of heightened scrutiny for gays and lesbians.

And Justice Kennedy did not come off any the passionate supporter of gay rights that many expected based on his prior pro-gay opinions.   Not surprisingly, Kennedy will play a critical role in deciding the outcome of these cases and, with that, the future of gay rights in this country for the foreseeable future.

Prop 8

The Prop 8 case started with the justices pushing the lawyer for the Prop 8 proponents, Charles Cooper, to speak at some length about standing.  There may be couple justices who determine that the Prop 8 proponents lack standing but my fantasy that the conservative justices would be leading this charge was quickly dashed.   While it has been the conservatives who had defined standing narrowly in earlier cases, they seemed quite inclined to find standing here.   Apart from the standing issues,  a couple other justices, most notably Justices Kennedy and Sotomayor raised the question whether it was a mistake to have granted cert in the case in the first place.  [Leading Justice Scalia to grumble, wrongly I think, that it is too late for the Court to decide that at this point.   Wrong because it takes only four justices to vote to grant cert and surely a majority have the right to decide the case should not have been heard.  I’ll get to what is likely leading some of the justices to reconsider the wisdom of hearing the case but I will here note that I found the Court’s decision to hear the Prop 8 case devastating because at best it delayed the ability of same-sex couples to marry in California and at worst it meant a reversal of the Ninth Circuit’s decision and a possible narrowing of the scope of the Romer decision.

Many on the Court are struggling with how to resolve this dispute.  That is clear. Also clear and not terribly surprising is that there is little support for Ted Olson’s position that the Court should compel all states to open marriage to same-sex couples.  Justice Kennedy suggested this was asking the Court to move into “unchartered waters,” and other justices expressed similar concerns that it was “too soon” to know the impact of allowing same-sex couples to marry.   I personally found Olson’s argument long on passion but a tad glib for my tastes.  Cooper on the other hand came off as calm and thoughtful, and anything but a bigot.  Cooper’s problem is that I don’t think he has the law on his side in light of Romer and the challenge there is to find a valid reason for California to give gays near-marriage via domestic partnerships (“skim milk” per Justice Ginsburg) while restricting marriage to heterosexuals.

There were some interesting exchanges.   When Justice Scalia asked Ted Olson when the right of gays and lesbians to marry was born, challenging Olson’s fundamental rights argument, Olson was so nonplussed that he rather brazenly (or playing the law professor) responded with a question, asking Scalia when the right of people of different races to marry was created.   Scalia had a ready answer (Going to the nation’s founding.).   Olson I think he could have suggested the privacy and liberty jurisprudence starting in the 1970s until now provides the basis.  This, of course, would not have satisfied Scalia, but his vote is lost based on his backward looking approach to fundamental rights.   And Olson could have raised Lawrence, which he didn’t.   [John Sims , for the record, views this exchange differently and think it was well handled by Olson.]

I was most started that there was very little legal argument presented.  I recently published a law review article suggesting that the reach of Romer was going to be the key issue in the case.   Romer was barely mentioned (though I continue to think it will be relied on significantly should the Court decide the case on the merits).

Solicitor General Verrilli’s position also seemed to have little support, and for good reasons.   The SG argued that the Court should only compel marriage rights in the 8 or so states that have “near marriage,” that is those states that have civil unions and domestic partnerships conferring broad rights.   Justices Breyer, Sotomayor and Alito (though approaching the issue from a different angle) all pointed out the peculiarity of this position.  Those states who treat their gay and lesbian citizen nearly equal would be forced to provide marriage while those who treat the poorly get a pass.  While the Ninth Circuit comes close to this position, that opinion focuses just on California.  I also think, though this was not raised in any significant way, that there is something unique about California as we have this peculiar situation of having 18,000 legally married same-sex couples making for an unusually complicated state of affairs.

So where do this leave things re Prop 8?   While I think Charles Cooper as the lawyer for the Prop 8 proponents did a good job coming as fair and calm , I don’t think he necessarily persuaded the majority of the justices that California has a valid reason for relegating gays and lesbians to domestic partnerships.  So, should the Court reach the merits (and it is in no way certain that they will), I expect Prop 8 to be struck down on narrow, California-centric grounds.  Maybe.

DOMA

I had expected this to be a much more straightforward case, and an easier one for the “good guys’ to win because Section 3 of DOMA is so blatantly discriminatory in that it treats one legal marriage differently than another legal marriage simply due to the sex of the members of the couple.  Easy, right?

Here the Court was so concerned about whether the defenders of Section 3 of DOMA, five members of the House of Representatives knows as BLAG, have standing that they began by hearing from a Harvard professor specially brought in by the Court to argue for 20 minutes that BLAG lacked standing.  The justices seemed divided on this issue, again with the conservatives the most likely to find BLAG’s standing.

When the Solicitor General started his argument on the substance, the Chief Justice and Justice Kennedy, asked about whether under principles of federalism , Section 3 of DOMA exceeded Congress’ authority.  They seemingly thought this might provide a clear way for them to resolve the case without having to get into the thorny equal protection issues including what level of scrutiny applies to gays and lesbians.  The Solicitor General seemed to concede that this was not the problem to the chagrin of at least a couple of the justices.

Justice Kennedy did note how far reaching the DOMA section 3 affects are, though he also seemed to suggest that if Congress only had limited marriage to heterosexuals for tax purposes that would be permissible.

The lawyer for BLAG,  former SG Paul Clement, being paid by the taxpayers, was am amazingly skilled advocate.  He had me thinking that maybe Congress had some valid basis for excluding same-sex married couples from federal benefits at points.  His key rational basis was “uniformity,” that Congress had the right to define for itself what constitutes a “marriage” for federal purposes.  I guess the argument is that the federal government should not have to grapple with more than one form of marriage.  Despite his excellent lawyering, I don’t think  most of the justices were persuaded that Congress had a valid basis for disparate treatment of legally married couples, however.

While there was only limited discussion of whether gays and lesbians are entitled to heightened scrutiny, the CJ at the very end of the argument try to get Windsor’s attorney to concede that gays and lesbians are not politically powerless, citing the political successes of the LGBT community (as I mentioned earlier).   Another problem for some of the justices is that once they apply heightened scrutiny to gays and lesbians, they will be pushed toward requiring all states to permit gays and lesbians to marry, something most of the justices don’t want to do.  I think it unlikely that a majority of the justices will agree to anything more than what has been used in prior cases – some sort of rational basis with a bite.  The most I am hoping for at this point is that the Court does not decide the issue of whether heightened scrutiny applies to gays and lesbians and finds Section 3 of DOMA to lack a rational basis.