The Oral Argument

I’ve tried, something like twelve times tonight, to load up and watch the oral arguments in Perry v. Schwarzenegger. I’ve been mostly frustrated.

I half-listened to the arguments about standing at work, and they affirmed what I already thought — there is something fishy about the elected officials of the state refusing to defend the law, and it leaves a hole in the format of adversarial proceedings that needs to be filled before a decision can be fully legitimated. The voters passed a law, and someone has to speak for the voters. The whole reason there are ballot initiatives is so that the voters can go around the public officials who may not like a law for whatever reason, so again, someone has to be able to speak for the voters. I thought that the proponents were reasonably strong on the standing issue, although I was singularly unimpressed with the argument by Imperial County — why the Supervisors of Imperial County couldn’t get the actual county clerk to stand as an intervenor is a good question, which was left unanswered. The opponents were strongest pointing out that Article III standing requires a particularized, personal injury by a litigant, which had not been articulated by anyone — but they didn’t address the fundamental question of who speaks for the voters in defense of what the voters decided to do.

On the substantive merits, I only got through about two-thirds of the proponents’ argument. Their attorney did as well as anyone could under the circumstances but here he seemed much less convincing than he did arguing for standing. Essentially, he relied on the procreative argument as a rational basis for Prop. 8 after having begun by admitting that marriage is a fundamental right, if not the most fundamental right of all. This is no way to get into the world of rational basis review — fundamental rights, as all first-year con law students know, are analyzed for strict scrutiny.

Worse (for the proponents), they seemed to encounter skepticism from Randy Smith, the most conservative of the three judges assigned to the panel, about whether Prop. 8 had even a rational basis justification.  Judge Smith appeared to be moved by the presence of a broad, close-to-marriage in substantive rights, institution of domestic partnership which was unchallenged by Prop. 8, and he essentially asked the proponents, “So doesn’t that leave us with just the name?” The proponents’ attorney responded that “The word essentially is the institution; you cannot separate the two.” So even if there is a thing, “X,” that is functionally identical to marriage, the different taxonomy created a substantive difference. Judge Smith looked like he had been served a turd on a hoagie roll when he was asked to swallow that one. Maybe I’m reading his facial expression wrong.

The rest of the emphasis I could get from the proponents’ argument rested on Baker v. Nelson (1972) 409 U.S. 810, a one-line opinion by the Supreme Court declining to grant review to a decision of the Minnesota Supreme Court that denied marriage to a same-sex couple in the early 1970’s for want of a “substantial Federal question.” Because under the rules of the Court then in existence, a decision to not grant appellate review to a state supreme court case counted as a substantive ruling, the argument is that Baker is binding Supreme Court precedent that there is no Federally-protected right that would compel a state to issue a marriage license to a same-sex couple. Today, the Baker decision would have been decided to the same result and using the same reasoning as a procedural matter, denying certiorari.  So it’s not exactly clear whether Baker remains a substantive, on-the-merits decision or not, but the proponents certainly argued that it was binding precedent.

I could not get Ted Olsen’s argument to play at all despite several attempts to run the C-SPAN video.  Just wouldn’t do it. I had to skip ahead to Therese Stewart’s argument, which nearly ended soon after I started it, so I really don’t have a good sense of what the opponents of Prop. 8 said. This summation of the argument suggests that the proponents’ citation of Crawford v. Los Angeles Board of Education made some headway. In Crawford, the voters reversed, by initiative, some court-mandated busing of students to remediate racial discrimination. Because the busing was only one way that the race discrimination problem could have been addressed, the voters were free to tell the school system, and the state itself, “No, go find another way to deal with this.” Because that, by itself, did not violate the Constitution, the will of the voters was upheld against a 14th amendment challenge and the initiative stood.  I’m not sure that I buy this as a point for the proponents, though. The opening of the proponents’ argument was a structured concession that the voters cannot pass initiatives that defy the Constitution — so the question is whether there is a right to marry in the Fourteenth Amendment that includes the right to marry someone of the same sex. If I were arguing for the proponents, I’d have stuck with Baker as the centerpiece of that argument, too.

Anyway, I did get to a significant portion of Therese Stewart’s analysis. (I could swear that I had Therese Stewart as an adjunct professor in law school, that she taught my State Constitutional Law class. But I can’t find any record of that at all one way or the other. She sure sounded like the woman who taught that class, smart, strong, and direct.) She pointed the Court back to the second substantive issue on the merits, which was whether Prop. 8 crossed the line into classifying citizens for the sake of having a classification, singling them out for special invidious treatment by popular initiative — clearly aiming directly at the holding in Romer v. Evans. Romer is still one of the most controversial decisions from the Court in the past generation, but its author, Anthony Kennedy, remains on the bench of the Supreme Court and is in all likelihood the swing vote if and when this case ever gets there. So this strikes me as laying the foundation for the real battle, and Stewart was laying clam to the terrain upon which she wants to fight. That’s smart advocacy.

The impression I was left with is that Imperial County for sure is unlikely to have standing. The Ninth Circuit Panel may well certify the question of the proponents’ standing back to the California Supreme Court. Frankly, I think that’s a good idea — it will establish whether California state law does or does not convey a right to speak on behalf of the voters when elected officials will not do so for whatever reason. If the Court chooses to find standing by the proponents, there is no doubt that the proponents here gave Prop. 8 a vigorous defense. And the system only really works when both sides present their cases with zeal and urgency instead of proceeding by default.

Now, here’s the thing. If, as I predict, the panel certifies the question of standing to the California Supreme Court for an advisory opinion, that will take several months. Then it will take several more months for an opinion to be crafted, which will in all likelihood affirm the trial court ruling in some way. I wouldn’t be at all surprised if the panel ducks the merits altogether and rules only on the basis of standing. But if it does address the merits, it will do so in a full-throated way, and likely find that Prop. 8 fails the rational basis test. That decision will then go on to review en banc, before an 11-judge panel of the Ninth Circuit. From there, whoever loses will petition for certiorari to the Supreme Court in, probably, early 2012.

Which of course will grant it, and guarantee that the issue is front and center during the 2012 Presidential election. A friend thinks that the Supremes will want to duck the issue, but I say, all Nine of the Justices worked very hard to get on the Supreme Court, and the whole, entire reason that anyone would angle to be on the Supreme Court is to be able to decide this very case. So we’ll still be talking and arguing about this issue in two years. Maybe longer than that.