Is there a rational basis for discrimination?

Who you'll hear:

Justice Sonia Sotomayor, Charles Cooper, counsel for proponents of Proposition 8, Justice Anthony Kennedy

In this clip, Justices Kagan, Kennedy, and Sotomayor press Proposition 8 counsel Charles Cooper on whether there is any rational basis for discriminating against gay Americans outside the marriage context. Mr. Cooper not only was unable to identify any context in which it would be rational for the government to discriminate against non-heterosexual Americans, he was also unable to define a specific harm to so-called “traditional marriage” arising from same-sex marriage. The justices’ questions point both to a fundamental weakness in the anti-equality case and to at least some interest in applying a heightened constitutional scrutiny to anti-LGBT discrimination.

But what about the children?

Who you'll hear:

Justice Antonin Scalia, Justice Ruth Bader Ginsburg, Charles Cooper, counsel for proponents of Proposition 8

Here, Justice Scalia attempts to help Mr. Cooper by arguing that there is “considerable disagreement” amongst “sociologists” about the effect of same-sex marriage on the children of these couples. Not only is this anti-equality argument untrue (as reported by the New York Times). Justice Ginsburg notes that California has chosen to allow same-sex adoption, which suggests that the “what about the children?” argument has little weight in the Proposition 8 case. While Justice Scalia falsely characterizes the pro-equality position as “arguing for a nationwide rule,” if heightened scrutiny were applied to Proposition 8, rather than mere rational basis review, the government would have the burden of justifying anti-LGBT discrimination. Additionally, Justice Ginsburg’s questioning suggests that California’s decision to allow same-sex adoption but not same-sex marriage might lead to Proposition 8’s failure to meet even the minimal rational basis review.

Drawing distinctions

Who you'll hear:

Charles Cooper, counsel for supporters of Proposition 8, Justice Stephen Breyer, Justice Elena Kagan

Justice Breyer asks Mr. Cooper a basic question: if procreation is the basis of “traditional marriage” and justifies discrimination on the basis of sexual orientation, why allow couples who cannot or will not procreate to marry? Justice Kagan then asks why we should not deny older couples who cannot procreate the right to marry. The exchange draws laughter from the crowd and reflects the irrationality and weakness of the anti-equality argument based on the ability to procreate.

"Walling off" marriage

Who you'll hear:

Theodore Olson, counsel for opponents of Proposition 8, Chief Justice John Roberts, Justice Antonin Scalia

Ted Olson, arguing for the pro-equality litigants, eloquently characterizes marriage as a fundamental individual right. He argues that Proposition 8 “walls off” gay and lesbian Americans from the institution of marriage. Justices Roberts and Scalia press forward with clearly hostile questioning. Justice Scalia, in particular, asks “when did it become unconstitutional to exclude homosexuals from marriage?” Mr. Olson responds with his own rhetorical questions, pointedly reminding the Court that bans on school segregation and interracial marriage were tolerated in America for centuries before the Supreme Court finally recognized their unconstitutionality in the mid-20th Century.

Prop. 8 was a "delete button"

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Who you'll hear:

Solicitor General Donald Verrilli, Justice Samuel Alito, Chief Justice John Roberts

Solicitor General Donald Verrilli here gets to a critical piece of the 9th Circuit’s holding below, which flows directly from Justice Kennedy’s opinion in Romer v. Evans: even if a group is not typically entitled to heightened constitutional protection, laws passed out of animus toward a particular group, especially laws that remove rights from the normal legislative process, are unconstitutional. Justice Scalia once again misrepresents the pro-equality argument as asking the Court to “impose this on the whole country.” General Verrilli simply asks the Court to decide the case actually before it, which is whether states which have granted same-sex couples legal marriage or marriage-like rights can subsequently take those rights away. The issue of whether same-sex marriage is constitutionally required is not necessary to invalidate Proposition 8, even though several conservative justices appear eager to strike a broader, and more lasting, blow against equality.

"Unchartered waters"

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Who you'll hear:

Justice Samuel Alito, Theodore Olson, counsel for opponents of Proposition 8, Chief Justice John Roberts, Justice Sonia Sotomayor, Justice Anthony Kennedy

The Justices and Mr. Olson have an extensive discussion about the importance of marriage, and how critical the actual label “marriage” is to heterosexual and homosexual couples. Buried in the discussion is another important legal point: the justices may be looking for a way out of deciding the case on the merits by dismissing the case as improvidently granted. If the justices were to so decide, the 9th Circuit opinion striking down the ban on same-sex marriage would be left intact, and same-sex Californians would be free to marry. The entire discussion is critical, as the justices and Mr. Olson explore the basic meaning of marriage, sexual identity, and the progress of constitutional protections throughout American history. Constitutional protections against racial, gender, and other discrimination – taken for granted today – were only recognized or concretely realized fairly recently in the Court’s jurisprudence. Rather than being a venture into “uncharted waters,” a pro-equality ruling in Hollingsworth would be in the best traditions of the Court expanding, rather than contracting, constitutional rights.

Will everything rise or fall on "standing"?

Who you'll hear:

Charles Cooper, counsel for supporters of Proposition 8, Chief Justice Roberts, Justice Ruth Bader Ginsburg, Justice Antonin Scalia, Justice Elena Kagan, Justice Anthony Kennedy, Justice Sonia Sotomayor, Justice Stephen Breyer

Almost immediately after Mr. Cooper began his argument, Chief Justice Roberts sought to explore the issue of whether the anti-equality Proposition 8 supporters have legal standing to bring suit to enforce Proposition 8. “Standing” is a doctrine rooted in Article III of the Constitution, which limits the power of citizens to bring litigation in federal courts. Conservative courts in particular have used standing doctrine to limit litigants’ access to court over the past several decades. As Justice Ginsburg points out, the Court has never granted standing to proponents of ballot initiatives, and it would be a radical departure from the Supreme Court’s standing doctrine to do so in Hollingsworth. While an individual may have power under state law to enforce laws in state court, that general public action is not allowed in federal court without specific authorization under federal law, or specific individualized harm. If the justices were to decide that the anti-equality litigants did not have legal standing to appeal District Court Judge Vaughn Walker’s injunction against Proposition 8, the 9th Circuit opinion would be vacated, but Proposition 8 would remain barred from taking effect. In other words, a dismissal on standing grounds would likewise be a victory for pro-equality forces.