Last week I attended a first-rate panel on the Supreme Court’s gay marriage cases sponsored by the D.C. chapter of the National Gay and Lesbian Journalist Association and the Human Rights Campaign, with presentations by former acting Solicitor General Walter Dellinger and by Paul Smith, winning counsel in the landmark case of Lawrence v. Texas. I thought the best line was Dellinger’s, when he described the difficulties counsel Charles Cooper faced in defending the constitutionality of California’s Proposition 8. In the earlier Lawrence case, the Court had ruled that moral disapproval of homosexuality was not an adequate basis for legislation. Trying to construct a defense of Prop 8 that did not rest on such a basis, Dellinger said, “Cooper was left like one of those French philosophers trying to compose a novel without the letter ‘e.'” Yes, if you tried hard enough you might do it — but oh, the strain and the artificiality!
Walter Dellinger on the Prop 8 Arguments
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11 Comments for “Walter Dellinger on the Prop 8 Arguments”
posted by Tom Scharbach on
“Cooper was left like one of those French philosophers trying to compose a novel without the letter ‘e.’” Yes, if you tried hard enough you might do it — but oh, the strain and the artificiality!
Apt.
Without moral disapprobation as a basis for marriage discrimination, nothing is left to the anti-equality advocates as a basis on which to discriminate except discredited “science”.
And in a state like California, extending all of the rights and responsibilities of marriage to same-sex couples in marriage-equivalent civil unions, all the junk science in the world adds up to nothing, because the state cannot claim to discriminate on that basis.
As Justice Scalia put it in his Lawrence dissent: “Justice O’Connor seeks to preserve [state laws limiting marriage to opposite-sex couples] by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. ”
Sometimes, Justice Scalia sees very clearly.
posted by Jorge on
Sometimes, Justice Scalia sees very clearly.
Having read O’Connor’s and Scalia’s opinions recently (O’Connor’s being the only opinion for overturning the sodomy ban on Equal Protection grounds), I would tend to agree.
Having read the New York State Court of Appeals’ decision, I would not agree.
But then Justice Kagan’s pointed questions throw that reasoning into doubt.
On balance I still do not buy into any of this “constitutional rights” logic.
posted by Tom Scharbach on
Having read the New York State Court of Appeals’ decision, I would not agree.
I’m not clear what you disagree with, but here’s the core of the NY court’s ruling on the matter:
I’ll grant you that the NY legislature had a rational basis for advancing marriage as an incentive to encourage heterosexuals to be minimally responsible toward their children, but it does not follow that children who are wanted and planned for (adoption, IVF and so on) should be denied the opportunity to be raised by married parents. And, unless the NY legislature made a distinction between fertile and infertile heterosexual couples with respect to the availability of marriage, the rationale falls flat.
But then Justice Kagan’s pointed questions throw that reasoning into doubt.
Justice Kagan’s pointed questions destroyed the rationale as rational. But her questions would not have done so if the rationale made any sense. It doesn’t.
The fact that anti-equality proponents have to rely on rationales that are do inherently nonsensical proves Justice Scalia’s insight: But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples.” “Preserving traditional marriage” is a sham, and always has been.
Opposition to marriage equality has always been about moral disapproval, and nothing else. All the anti-marriage arguments (the junk science, the fear mongering about pedophilia and polygamy, the twisted logic of the NY court’s decision, and all the rest) have been nothing more than attempts to put lipstick on a pig.
Scalia knows that, as does anyone smart enough to write with a crayon.
posted by Jorge on
I’m not clear what you disagree with
Scalia’s opinion that “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples” makes sense when you look at it in light of Justice O’Connor’s concur-in-judgment opinion.
It doesn’t fit when you look at the New York State Court of Appeals decision upholding New York’s straight marriage-only law.
The reason for that is because New York’s marriage law pre-dated the conception of homosexuality as a distinct sexual orientation and of gay marriages, so moral disapproval arguably wasn’t anywhere in the picture when it came to preserving traditional marriage. There is also the matter of the New York court upholding the law based on a version of the procreation argument.
There is plenty of room for doubt, but overall I would say Scalia should not be right on his prediction.
posted by Tom Scharbach on
Justice Scalia’s observation (“But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples.“) was about the present, not the distant past.
And he’s right. After morally-neutral rationales for limiting marriage to same-sex couples have been eliminated (either (a) because a state like California has granted all of the rights and responsibilities of marriage to same-sex couples, or (b) because the morally-neutral arguments against marriage equality (e.g., straights will stop marrying if gays/lesbians can, gays/lesbians are child predators, gays/lesbians can’t be trusted to parent children, blah, blah, blah …) have been tested and found wanting, what is left besides moral disapproval? Justice Scalia was talking about that situation, and that is where the “defense of traditional marriage” movement now stands.
As to the NY court’s twisted logic, I simply point out that (1) the fact that marriage benefits the children of straight parents is no reason to deny the marriage to the children of gay/lesbian parents, and (2) the state’s position that the benefits of marriage are important only to “natural” children is not consistent with the state’s granting marriage privileges to infertile straight couples, straight parents of adoptive (but not “natural”) children, step parents, and so on.
If the state were consistent, and denied marriage to all couples except those who actually procreate as a couple, then the state’s position might pass the smell test. But the state doesn’t, and the state’s position doesn’t.
The state does not draw the marriage line at a point tied to procreation. It draws the line at straight versus gay/lesbian. It doesn’t draw the line at a point that is rationally connected to its supposed rationale.
posted by Houndentenor on
The arguments fall into three categories:
1. This isn’t how it’s always been. This ignores that for thousands of years polygamy was common (still is in much of the world) or that marriages were almost all arranged until the mid to late 19th century and many other changes to our idea of marriage in the last few hundred years or so.
2. God hates it. That’s an argument for no allowing such marriages in your church/temple/mosque/whatever. It’s not a sufficient reason for banning it for other people.
3. Kids. As if non-married gay couples haven’t been raising children for decades. It’s a nonsensical argument. Marriage benefits those children being raised by gay people and won’t cause any more children to be raised in such situations.
Oh, plus the “it’s icky” argument which doesn’t warrant a response.
Sorry, but court case after court case has shown that there is no rational basis to prevent same-sex couples from marrying. There are emotional arguments mostly based on fear and loathing (mostly variations on “it’s icky” that have been successful on bringing out the bigot in too many Americans in state-wide ballot initiatives, but courts should be, and thankfully mostly are, above such transparently cheap tactics that sadly have worked for too long.
My prediction: Prop 8 goes along with at least part of DOMA. The rest is going to be kicked back to the states to sort out. That’s not what I think SHOULD happen. It’s just what I think will.
posted by Tom Scharbach on
Sorry, but court case after court case has shown that there is no rational basis to prevent same-sex couples from marrying.
The only argument that has succeeded as a basis for a state high court upholding the state’s right to discriminate (Indiana, New York and Washington) is that heterosexuals, in marked contrast to gays and lesbians, are so irresponsible that marriage is needed as an incentive to encourage them to raise their illegitimate spawn instead of leaving them at the door of a hospital.
I laugh every time I think about it — the conservative Christians had to argue that they are too irresponsible to be trusted to raise children without adult supervision in order to make a case for “traditional marriage” — but the irresponsible behavior of heterosexuals is not a reason to deny marriage to gays and lesbians.
It was laughable to listen to Cooper try to make that argument in the Prop 8 case with a straight face. Lawyers have to work with what they are given, and Cooper didn’t have much.
posted by Tom Jefferson III on
I been listening to the oral arguments recently (both on Lawrence and the more recent ones).
I suspect that with Lawrence, O’ Conner (who had joined with the majority in Bowers) probably realized she made a mistake back in the 1980s, but did not want to admit it and wanted to, at least stall, subsequent legal arguments about gay marriage for a bit.
Her equal protection arguments are not that bad and I would have to agree that a anti-fornication/sodomy law that actually applied equally (in law and practice) to gay and straight couples (and did not just get used to harass gays) would probably not remain a law for very long.
This is also largely why out of the four good U.S. Supreme Court rulings on gay rights (the first being one odd opinion from the 1950s) have never actually treated government sponsored sexual orientation discrimination with heighten (i.e. sex discrimination) or strict scrutiny (racial, ethnic or religious discrimination).
Keeping it at the “rational review level” means that — in terms of gay rights — the court probably does not go too far ahead of (or trails too far behind) public opinion/consensus on gay rights.
As for the cases on gay marriage, I suspect that the Court will probably saying that the Federal government should offer the legal benefits to gay couples where the couples are in a State that recognizes gay marriage. Beyond that, they will probably wait like 10 years for it all to play out at the state level.
posted by Houndentenor on
Everything I read at the time indicated that O’Connor had careful structured her own opinion so as not to have to admit she was wrong less than a decade before. She was. But better that she write her own opinion than vote to uphold laws restricting private consensual sex between adults.
posted by Houndentenor on
P.S. I highly recommend the book Flagrant Conduct by Dale Carpenter for an in-depth look at Lawrence v Texas from start to finish.
posted by Jorge on
Considering that O’Connor was and remained a swing conservative Justice, isn’t it probable she would have decided the exact same way in Bowers?
I just thought of something else. Maybe the attorneys representing the gay guys in Bowers simply blew it on argument and briefing. For whatever reason, the question accepted at certiori was along the lines of “Is there a Constitutional right to sodomy”? Not exactly the best way to frame the issue. This is the Justice who once wrote that James Madison rejected such proposed constitutional amendments as the right to wear powdered wigs in public… well, much as that was important to people in the 1700s and as elegantly she explained away why that’s not stated outright the Constitution, as it stands I don’t think we actually have a right to wear powdered wigs anywhere except in public, whereas other First Amendment rights tend to go further. Justice O’Connor was the most famous of the unpredictable, split-hair Justices. I think even in her late years, she still would have decided in exactly the same way. It’s not as if the liberal justices were pansies the first time.