A=A, or, a Constitutional Lawyer Looks at Somebody Else's Oral Argument (Tuesday Evening Quarterbacking Edition)

[Slightly Revised in Section 2]

So, today's oral argument in Hollingsworth v. Perry (which you can hear here) involved Ted Olson, famous (or infamous) conservative legal luminary, U.S. Solicitor General Donald Verrilli, and Charles J. Cooper, representing the petitioners, supporters of California's Proposition 8. Now, rather than rehash the arguments (a pretty good precis is here), I thought I'd highlight a few key features that I haven't seen addressed in even the better commentary, which is, understandably enough, focused on trying to predict an outcome. Tea-leaf reading is inherently dangerous, though, so I thought I would look more at themes in the by-play between the bench and the bar.

1. A=A: Turning an Argument Turtle

A recurring theme in the argument on the part of several justices (Alito, Roberts, Scalia. Even Breyer, Ginsburg and Kennedy noted it as an irony) was that the challenge to Prop 8 was essentially unfair to the state, because California was, the challengers argued, unable to assert the grounds for the traditional definition of marriage that a less pro-gay state could. In essence, the troika argued, California was being punished for creating civil unions, adoption by gay couples and otherwise seeking to give all the practical benefits to same-sex couples as received by heterosexual married couples save the name of marriage.

Now this contention was in fact a very clever subversion of the fact that the Prop 8 proponents had, before the District Court, abjectly failed to provide any evidence--expert or not--for the constitutional amendment that overturned the Supreme Court of California's interpretation of the California Constitution's guarantees of Equal Protection and Due Process as encompassing a right to equal access to marriage. That ruling, itself an adequate and independent state law ground, immunized the 2008 In re Marriage Cases from federal court review, despite which fact Chief Justice Roberts put the onus of "a change by California Supreme Court of an institution since time immemorial." (Tr. p. 56) As Roberts himself noted, though, the decision to exclude gays and lesbians from the status of marriage came about "only because Proposition 8 came 140 days after the California Supreme Court issued its decision." (Tr. p 55) Roberts' view of the "change" rests on an unspoken assumption that the California Supreme Court's ruling is not well-dfounded in that state's law, over which neither he nor his Court has no constitutional authority, a concept well recognized since Erie v. Tompkins (1938):

Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State whether they be local in their nature or "general," be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts.

The point is, that, having enacted statutes inconsistent with each of the alleged bases for limiting marriage to heterosexual couples, the State (through the individual Prop 8 supporters who defended the amendment) could not compile a record establishing a rational, non-discriminatory basis for the constitutional amendment stripping same-sex couples of their state law constitutional right, as authoritatively declared by the state's highest judicial authority. I think both Olson and Verrilli handled the point rather well, but I was surprised that the justices were so amenable to an analysis which flipped the lack of a neutral, non-discriminatory basis for Prop 8 into a liability.

2. A=A Redux: The Deceitful Pause Button

A similar low point in the intellectual analysis occurred in Cooper's initial argument and his rebuttal when he referred to Prop 8 as "hitting the pause button." As Verrilli emphasized, that's really not true at all; by enshrining the exclusion of same sex couples in the state constitution, Prop 8 is not a mere statute which can be repealed through normal processes. While Justice Alito pointed out that the California Constitution has been amended 500 times--dramatically more often than the federal Constitution, as is par for the course, as "[t]here have been almost 150 state constitutions, they have been amended roughly 12,000 times"--Prop 8 made repeal as hard is as possible under California law, and was designed to do just that, and elevate the proposition to one of fundamental value. The fact that it isn't as hard as amending the U.S. Constitution isn't really an argument that it's just a pause; it just speaks to the limits of a ballot initiative where a subsequent initiative can be brought. ETA: In that way, this case is much more like Romer v. Evans, in which a state constitution was amended by popular initiative to strip gays and lesbians of local anti-discrimination protections, a state action the Court found to have no rational basis other than a discriminatory intent to raise barriers to their full political participation. As in that case, here too gays and lesbians were set a constitutional barrier to securing legislation applicable to no other class in society. Notably, Justice Scalia, who purports not to be anti-gay, but to believe that the legislative process is the only appropriate way to secure reform, dissented in Romer.

And here is where I must strenuously disagree with Andrew Sullivan's long-held view that " I’d like to win this in the most enduringly legitimate way – in the democratic process, where we are winning more quickly than some of us ever dreamed of."

I'm sorry, but I think Andrew here is thinking like a Briton, schooled in Parliamentary supremacy, under which "Parliament is the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change." And the UK has, much more so than the US, managed to constrain itself though tradition and informal mores from constantly undermining the stability and predictability of law. But, even with the constraints of a written constitution, we have often set fundamental rights at naught. And we have, as a nation, long recognized that "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." As de Tocqueville noted in Democracy in America, "If ever the free institutions of America are destroyed, that event may be attributed to the omnipotence of the majority, which may at some future time urge the minorities to desperation and oblige them to have recourse to physical force." He then quotes Federalist No. 51:

"It is of great importance in a republic, not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Justice is the end of government. It is the end of civil society. It ever has been, and ever will be, pursued until it be obtained, or until liberty be lost in the pursuit. In a society, under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger: and as, in the latter state, even the stronger individuals are prompted by the uncertainty of their condition to submit to a government which may protect the weak as well as themselves, so, in the former state, will the more powerful factions be gradually induced by a like motive to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted, that, if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of right under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of the factious majorities, that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it.¯

Sullivan's faith in legislation is admirable, but reflects a certain naiveté that the Framers, de Tocqueville, and our greatest jurists have avoided.

3. Finale: The Originalist Dog that did not Bark, but Whined

Finally, let me cite an exchange between Scalia and Olson:

JUSTICE SCALIA: You — you’ve led me right into a question I was going to ask. The California Supreme Court decides what the law is. That’s what we decide, right? We don’t prescribe law for the future. We — we decide what the law is. I’m curious, when -­ when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. (Laughter.)

JUSTICE SCALIA: When do you think it became unconstitutional? Has it always been unconstitutional?

MR. OLSON: When the — when the California Supreme Court faced the decision, which it had never faced before, is — does excluding gay and lesbian citizens, who are a class based upon their status as homosexuals — is it — is it constitutional -

JUSTICE SCALIA: Okay. So I want to know how long it has been unconstitutional in those -­

MR. OLSON: I don’t — when — it seems to me, Justice Scalia, that -­

JUSTICE SCALIA: It seems to me you ought to be able to tell me when. Otherwise, I don’t know how to decide the case.

MR. OLSON: I — I submit you’ve never required that before. When you decided that — that individuals — after having decided that separate but equal schools were permissible, a decision by this Court, when you decided that that was unconstitutional, when did that become unconstitutional?

JUSTICE SCALIA: 50 years ago, it was okay?

MR. OLSON: I — I can’t answer that question, and I don’t think this Court has ever phrased the question in that way.

JUSTICE SCALIA: I can’t either. That’s the problem. That’s exactly the problem.

Again, this is why Scalia's originalism is ultimately lacking in intellectual rigor, or even consistency with his own methodology of interpreting statutes; as I have previously pointed out:

Scalia applies the [constitutional] principle to a specific issue the drafters of the 14th Amendment mght be presumed to find shocking, and uses that specific application to denude the text of its meaning. Scalia privileges his hypothesis over the text, applying what he believes some unknown and unasked portion of the drafters (or ratifiers) or both of the Amendments as to the specific issue to be decided in 2011, an an issue which they did not consider or opine on. He is also assuming unanimity, and ascertainability of that intent. None of these assumptions is backed up. Moreover, Scalia is ignoring the fact that people often draft legal instruments more broadly than they intend--and the omissions are enforceable.

Just as was his infamous interview declaring the 14th Amendment's Equal Protection Clause inapplicable to women, so too this bit of dialogue is an effort to create uncertainty in the text by drawing Olson into a debate over an application its Framers did not foresee, and privilege what he believes they would have thought on the social issue of our day, with their 19th Century sensibilities. The fact that Scalia has to ignore his own prior reasoning that "Judges interpret laws rather than reconstruct legislators' intentions. Where the language of those laws is clear, we are not free to replace it with an unenacted legislative intent."

And equal = equal.
A=A.
QED.