This just posted on AOL.
The arguments in the California case probably were the same or very similar to the arguments in the case
attacking the Defense of Marriage Act.
If DOMA falls, same-sex green card cases will be legal, which will be a
huge development in USCIS jurisprudence. Stay tuned:
WASHINGTON --
Justice Anthony Kennedy on Tuesday called the prospect of same-sex marriage
“uncharted waters” during oral arguments before the U.S. Supreme Court on Proposition 8,
California’s gay marriage ban.
"And you
can play with that metaphor," Kennedy said, continuing that in that
consideration, "There's a wonderful destination" or "a
cliff."
Prop 8 was the
California ballot referendum passed in November 2008 that banned same-sex
marriage, reversing by popular vote the state Supreme Court's decision just
months earlier to recognize marriage equality.
Kennedy seemed
genuinely interested in that “wonderful destination” and mortified by the
prospect that there still might be a cliff. He acknowledged that while the
social science on gay marriage is relatively new, there is an “immediate” legal
harm to those same-sex couples who cannot be married. He said the voice of
thousands of children of same-sex couples is an important aspect of the case.
“They want
their parents to have full recognition and legal status,” Kennedy told Charles
J. Cooper, who is representing supporters of Prop 8’s ban on gay marriage. “The
voice of those children is considerable in this case, don’t you think?”
Kennedy also
expressed deep doubts that Prop 8, and same-sex marriage bans in general,
present "no harm of denigration" against gays and lesbians.
Before the
justices even reached the merits of the constitutional case for same-sex
marriage, Chief Justice John Roberts instructed both advocates to argue whether
the parties defending Prop 8 had legal standing.
On this point,
the court's liberal bloc -- Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia
Sotomayor and Elena Kagan -- all appeared to believe that the Prop 8 proponents
could not represent the state of California after Gov. Jerry Brown (D) and
Attorney General Kamala Harris refused to defend the law.
Yet the court's
Republican-appointed members -- Chief Justice Roberts and Justices Kennedy,
Antonin Scalia and Samuel Alito -- seemed to agree with the California Supreme
Court, which ruled that Cooper's clients could serve as representatives of the
state's interest in the case.
When arguments
reached the constitutional merits, the ideological alliances swapped.
"Can you
think of any other rational basis, reason, for a state using sexual orientation
as a factor in denying homosexuals benefits or imposing burdens on them?"
Sotomayor asked Cooper. "Is there any other rational decision-making that
the government could make? Denying them a job, not granting them benefits of
some sort, any other decision?"
And when Cooper
said Prop 8 supports "responsible procreation," Kagan pushed back.
"If you are over the age of 55, you don't help us serve the government's
interest in regulating procreation through marriage. So why is that
different?"
Yet the
liveliest moments came when Scalia asked Ted Olson, President George W. Bush's
solicitor general and the lawyer for the two same-sex couples challenging Prop
8, "When did it become unconstitutional to exclude homosexual couples from
marriage? 1791 [when the Bill of Rights was ratified]? 1868, when the 14th
Amendment was adopted?"
Olson pushed
back against Scalia's originalist view, asking him in return, "When did it
become unconstitutional to prohibit interracial marriages?"
"It's an
easy question," Scalia said. "At the time that the equal protection
clause was adopted. That's absolutely true. But don't give me a question to my
question."
"There's
no specific date in time," Olson ultimately answered. "This is an
evolutionary cycle."
Alito's issues
with Olson's argument were more pragmatic. "You want us to step in and
render a decision based on an assessment of the effects of this institution
which is newer than cell phones or the Internet," Alito said. "On a
question like that, of such fundamental importance, why should it not be left
for the people, either acting through initiatives and referendums or through
their elected public officials?"
Yet Ginsburg
noted that one of the decisions Cooper was relying on in the case was written
in 1971, when “same-sex intimate conduct was considered criminal.” In that
case, Baker v. Nelson, the Supreme Court dismissed a Minnesota man's attempt to
marry his male partner as lacking a "substantial federal question."
Kennedy also
said he was “trying to wrestle with” whether a same-sex marriage ban should be
viewed as a gender-based classification, calling it a “difficult question.”
By the end of
the argument, it was clear that Kennedy believed the Prop 8 proponents had
standing to sue, that same-sex couples had the right to marry and that such a
right extended to all states. Yet that option -- making same-sex marriage a
federal constitutional right -- compelled him to search for an escape hatch.
“Why [do] you
think we should take and decide this case?” Kennedy asked Cooper.
By the time he
asked that question at the very end of the argument, Kennedy had already sided
with his four conservative colleagues (assuming the ever-silent Justice
Clarence Thomas agrees with his more vocal colleagues) that Cooper's clients
belonged in court, while also siding with his four liberal colleagues that the
Constitution mandates marriage equality. Meanwhile, Kennedy rejected the 9th
U.S. Circuit Court of Appeals' California-only reasoning, and both liberals and
conservatives have lambasted the Obama administration's argument for a
so-called "eight-state solution."
That leaves
Kennedy, who holds the fifth vote in this case, facing down those uncharted
waters. And if his own history on the court is any indication, he isn't as
afraid of the deep end as he let on.
A decision in
the case, Hollingsworth v. Perry, is expected by July.
This is a
developing story and has been updated.
No comments:
Post a Comment