Skip to comments.SCOTUS: Oral Arguments on Same-sex marriage today [Live Thread] (Audio available by 2:00 ET)
Posted on 03/26/2013 10:05:42 AM PDT by BuckeyeTexan
Today the Supreme Court heard oral arguments for about 80 minutes in Hollingsworth v. Perry, which is the lawsuit regarding California's Proposition 8. Two gay couples brought suit on the grounds that the Equal Protection clause of the 14th Amendment prohibits the State of California from defining marriage as the union of a man and a woman.
Since the State of California refuses to defend Proposition 8, opponents of gay marriage sought to enforce it in Hollingsworth v. Perry. Generally, citizens do not have legal standing to enforce laws with which they agree. Several justices expressed doubt that gay marriage opponents have standing in this case.
"I don't think we've ever allowed anything like that," said Chief Justice John Roberts.
"I just wonder if this case was properly granted," said Justice Anthony M. Kennedy
"Why is taking a case now the answer?" asked Justice Sonia Sotomayor.
Addressing the merits of the case, Justice Anthony Kennedy focused on the "imminent injury" to children in California.
"Theres some 40,000 children in California that live with same-sex parents. They want their parents to have full recognition and full status. The voice of those children is important."
Justices Alito and Kennedy raised the possibility that the court is moving too fast to address whether or not same-sex couples should be allowed to marry.
"We have five years of information to pose against 2,000 years of history or more," said Justice Anthony Kennedy.
"You want us to step in and assess the effects of this institution, which is newer than cellphones and/or the Internet?" asked Justice Samuel A. Alito.
On the subject of how same-sex marriage harms traditional marriage, Justice Elena Kagan asked, "How does this cause and effect work?"
On the subject of procreation being the state's key interest in the insitution of marriage, Justice Stephen G. Breyer said, "There are lots of people who get married who cant have children."
I apologize for the choppiness of the article. I wanted to get an update to you before the audio is available.
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Is that 1:00 California time?
“Oral arguments.” Perhaps a poor choice of words.
Nope. That’s what they’re called.
The will of the people only counts when it goes the way liberals want it to go.
Eastern time since SCOTUS is in D.C.
P.S. Kagan and Roberts should recuse themselves for conflict of interest!
As a refresher,
What is exactly 9th court decision on Prop 8?
We all know how this will end.
Sotomayer, Kagan, and Ginsburg plus not a single protestant on the US Supreme Court.
FWIW, my impression of the quotes I’ve seen from the discussion on standing is that there is a serious legal question as to whether or not the defendants have the right to be heard in federal court.
If the court dismisses this case on the basis of standing, that would leave in place the 9th Circuit decision overturning Proposition 8.
Chief Justice Roberts seems firmly on the side that standing should not be granted. As usual, Justice Kennedy made statements that could go either way.
The lawyer defending Prop 8 should demand that if the justices intend to strike down the law that they strike down all laws banning any kind of marriage. You can’t rule that one kind of marriage must now be accepted and any other type be excluded. Any and every type relationship must be given equal status as well by the Gay and Lesbian’s rational. While they’re at it, demand the tax code reflect their ruling as well. No more deductions and different rates that don’t apply to every one. Either every one has them and pays the same rate or it’s unconstitutional.
The 9th Circuit overturned Prop. 8 and struck down the ban on gay-marriage.
This is the stupidest argument for gay marriage, and it doesn't surprise me it comes from Breyer, since Souter is no longer there to be the village idiot.
Why don't we allow brothers and sisters to marry, or close relations? Precisely because of the harm if they should have children. But, according to Breyer, many marriages don't have children, so clearly there is no rational basis to deny brothers and sisters the "right" to marry.
And since the concept of traditional marriage is that you get married, and THEN have children,and not the other way around, under the "Breyer" standard marriage makes no sense, because NOBODY WHO GETS MARRIED has children at the time they get married.
In reality, the point of marriage WAS to have children. There were few people getting married simply to guarantee themselves a partner. That some people can't have kids is of no consequence -- most can. That some people choose not to is of no consequence -- most do. And that marriage doesn't always work out the way government had intended, doesn't mean marriage has to be modified in a way that guarantees that it won't work the way government intends.
Since there is no way to guarantee that a particular couple WILL HAVE CHILDREN before you grant the license, in the history of the world up until now, marriage has been defined precisely in the way that was most likely to lead to the outcome. So, we don't let brothers and sisters marry. We don't let same-sex couples marry.
Frankly, there is no particular reason for the state to recognize the marriage of two people who are past childbearing age. But marriage has always been allowed between unrelated men and women.
Even in our darker history, the rules are based on children -- we didn't allow mixed-race marriages NOT because we were concerned about a white guy having sex with a black woman, but because of irrational fear of mixed-race children.
The bad part of the rest of this summary of the oral arguments is that most of them have nothing to do with what the court is SUPPOSED to be deciding -- NOT whether it makes sense to ban gay marriage or allow it, but whether the constitution REQUIRES that two people of the same sex be allowed to get government sanction for "marriage".
Roberts might be right that they don’t usually allow this, but it makes no sense to call for a lack of standing.
If the PEOPLE of a state have the right to amend their constitution, which they clearly do in California, then the PEOPLE of the state should directly have standing to defend their constitutional amendment against claims that it violates the federal constitution.
Oddly, given that Roberts went out of his way to give deference to the legislative branch in his Obamacare ruling, I would expect that he would reject the constitutional question here, and let the congress have it’s way. And I would expect he would cite all the recent “We are for gay marriage” pronouncements by elected representatives as a clear indication that there is nothing stopping the congress, or a state, from approving gay marriage if they want.
... And that is based on the current SC. We could have several retirements over the next few years. Most major media, educational and political institutions except the house will be controlled by liberals. And the house has weak RINO leadership and controlled by fear.
>>> On the subject of how same-sex marriage harms traditional marriage, Justice Elena Kagan asked, “How does this cause and effect work?”
If I say what I want to say, I will be banned.
While I believe that gay-marriage is legally a states’ rights issue, my Christian faith leaves me firmly against the idea. So as a Christian, I was somewhat disappointed in Cooper’s defense because he refrained from a direct attack on gay marriage. As a states’ rights advocate, I appreciated the fact that he tried to convince the court that important, democratic, timely, public debate should continue as is with various states banning and allowing gay marriage.
There was a particulary “funny” exchange between Scalia and Kagan on this subject.
The two women are , no question. I am convinced that Roberts is homosexual as well.
The two women are , no question. I am convinced that Roberts is homosexual as well.
I’m not disagreeing with your reasoning, but a caller to Rush, and Rush himself, just got through saying that if the 9th circus granted standing to an entity that didn’t deserve it and heard the case and ruled, that the entire proceeding of the 9th circus could be invalidated, which would leave in place prop 8.
I don’t know. I’m quoting what I heard. Rush said this is one reason for a lot of confusion in this case.
Link to transcript: http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-144a.pdf
Link to Real Audio audio: http://www.supremecourt.gov/media/audio/realplayerfiles/12-144.ra
Link to Windows Media audio: http://www.supremecourt.gov/media/audio/wmafiles/12-144.wma
Link to MP3 audio: http://www.supremecourt.gov/media/audio/mp3files/12-144.mp3
Yes, but the 9th Circuit granted standing and so did a lower court. One of those rulings will prevail as I understand legal experts. (I am assuming that each court grants or denies standing for itself.) But ... IANAL! :)
Maybe LL will share what he thinks, legally speaking.
??? Too much twisted reasoning for my taste.
“Regular folks” would not have come to the same conclusion.
The CA State AG really is the source of the standing issue.
After Prop 8 was passed and became part of the CA Constitution, the 9th Circuit [actually just 1 judge] overturned it. BTW: The judge who overturned it is gay ...
The CA AG then declined to appeal it - something he is SUPPOSED to do for the people. Prop 8 proponents then went to the CA Supreme Court and it found that they did have standing when the CA AG declines.
Prop 8 proponents then went to the 9th Circuit and asked for an en banc hearing. It declined and pooch-punted it directly to SCOTUS.
If the CA AG had stood up for the people and appealed, like he is supposed to do, standing would not be an issue at SCOTUS today.
Chicago Tribune: Supreme Court wary of broad ruling endorsing gay marriage
LA Times: Supreme Court appears split on Prop. 8, broad gay marriage ruling
Washington Post: Supreme Court justices conflicted on gay marriage case
Fox News: Justices indicate interest in narrow ruling on gay marriage
USA Today: Supreme Court justices question gay marriage bans
ABC News: Supreme Court Justices Struggle With Federal Right to Gay Marriage
I fear for this country. We are indeed as Judge Bork pointed out, "Slouching Towards Gomorrah". We have become a nation not of laws but of "judges in black robes". What the people think is only preliminary. Our votes mean nothing until some "court" says so.
From the Fox News article:
Chief Justice John Roberts told Olson that it seemed supporters of gay marriage were trying to change the meaning of the word “marriage” by including same-sex couples.
Interesting. Didn’t see that coming from Roberts.
Thank God for Scalia.
And Thomas. The two of them are a triumph for conservatives. Brilliant legal minds and conservative.
That came to mind. :0)
Standing is an element of subject-matter jurisdiction (if the plaintiff or appellant lacks standing, there is no "case or controversy" and the case cannot be heard in federal court). So, even if the parties do not raise the issue, SCOTUS will always decide for itself if there is standing at the SCOTUS level, and can review the lower courts' decisions as to standing.
If SCOTUS decides that the appellants lack standing, it can either dismiss the appeal (which will leave the 9th Circuit's decision in place in California, but without any precedential impact on other states), or it can decide that there never was standing even in the lower courts (which will wipe out the lower court decisions). Either way, the Court would avoid a ruling on the merits of gay marriage. That seems to be what Kennedy wants to do: he does not want to be the 5th vote to decide the constitutionality of gay marriage either way. My guess is that he is personally in favor of gay marriage but he would prefer to have it enacted by voters and legislatures rather than imposed by the courts.
Kennedy has suggested NOT ruling at all at this time.
Normally, if there is no majority opinion from SCOTUS AFTER VOTING, the PREVIOUS 9th Circuit ruling applies, in which case, Prop 8 would be overturned and gay marriage would be legal [for CA only].
My question is whether the 9th Circuit’s ruling would stay in place [overturning Prop 8] OR because SCOTUS failed to rule, would the 9th Circuit’s ruling be vacated and the CA Supreme Court’s ruling apply?
In this scenario, SCOTUS DOES NOT rule either FOR or AGAINST - and in fact, DOES NOT RULE AT ALL, so, in THIS case, does the 9th Circuit’s ruling stand? Can a lower court’s constitutional ruling stand even IF SCOTUS has decided NOT TO RULE AT ALL after it has heard the case?
FYI: The CA Supreme Court ruled Prop 8 constitutional, but allowed previous gay marriages to remain in place ...
Because we have the most LEFTIST-ACTIVIST SCOTUS of all time. At least half of them are political operatives for 0bama. The complete lack of liberals’ ability to place the dictates of our Constitution above that of their own personal wishes is perhaps the gravest threat the judicial branch poses to our Republic.
Thank you. That explains the standing issue in this case much better for me.
Breyer seems to think that the petitioners do not have standing in federal courts but do in state courts.
He said that 40 states have what is called a public action where any citizen can bring action to “vindicate the interest in seeing the law enforced.” He then went on to say that historically the court has ruled that such cases do not belong in the federal system.
So if the court ruled that the petioners do not have standing in any federal court, that would overturn the 9th Circuit and uphold the CA Supreme Court, correct?
See Lurking Libertarian’s explanation immediately above your post.
SCOTUS can determine that the petitioner (opponents of gay marriage in this case) have no standing before SCOTUS or have no standing in any federal court, including the 9th Circuit.
I am waiting on his reply to whether or not SCOTUS can decide that the petitioner did not have standing before the CA Supreme Court.
Your time in answering questions is very much appreciated, as usual, FRiend. :)
(Please don’t bill me. Heh.)
Sounds like the SCOTUS is finding an ‘out’ to avoid ruling on this matter. Cowards.
Because some loony people think Roberts is gay. No wonder people make fun of conservatives. We try to do a “is he gay” witch hunt.
See posts 42 & 43, 45 & 46 regarding possible outcomes with respect to standing.