Civil and Human Rights

How lawyers saw the Prop 8 arguments

By Mike Scarcella


We asked several lawyers for a fast analysis of Tuesday’s Supreme Court fight over California’s Proposition 8, which bans same-sex marriage in the state. Their reactions to the arguments follow:


Paul Smith, Jenner & Block chair of appellate and Supreme Court practice: “The Court divided about as you’d expect. The four more liberal members seemed sympathetic to the challenge to Prop 8 on the merits and to the argument that discrimination based on sexual orientation triggers heightened scrutiny. They also doubted whether the proponents had standing to appeal. Justices Scalia, Alito and the Chief Justice seemed to disagree on the merits and about standing. If Justice Thomas agrees with those three it comes down to Justice Kennedy. He seems to be struggling to find an outcome he can accept.”


Carrie Severino, chief counsel and policy director of the Judicial Crisis Network: “The case will be close, but there is a real chance the justices will refrain from usurping the democratic role of resolving such a contentious issue as same sex marriage. That is good news for activists on both sides: an unprincipled and sweeping decision would only serve to pour fuel on the flames of the culture wars.”


Walter Dellinger, O’Melveny & Myers partner: “What was striking to me today was how the decision 10 years ago in Lawrence v. Texas makes it nearly impossible to defend bans on gay marriage. When the Supreme Court struck down laws criminalizing homosexual acts in Lawrence, it specifically held that moral disapproval of homosexuality was not a legitimate government interest. Once you take moral disapproval off the table, it leaves even a fine lawyer like Charles Cooper without a coherent argument. The defenses he offered for Prop 8 seemed made up and pretextual. Even if a majority of the Court is inclined to await a future case to decide the ultimate issue, today’s arguments left the case for the constitutionality of banning gay marriage in shambles.”


Caroline Frederickson, president of the American Constitution Society: “Proposition 8 is a law that runs counter to the core constitutional value that we are all equal under the law. Laws that treat LGBT Americans as second-class citizens are a clear violation of the Constitution’s Equal Protection Clause. The promise of equal protection cannot be realized as long as laws such as Proposition 8 survive.”


Judith Schaeffer, vice president of the Constitutional Accountability Center: “When pressed by the justices, the lawyer defending Proposition 8 could not come up with any legitimate reason for excluding gay and lesbian couples from the freedom to marry. The justices, while uncomfortable with Proposition 8, seemed hesitant to rule on the merits, but as Justice Kennedy noted, there was concern about branding the families of nearly 40,000 children in California as second-class.”

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