Waiting, Waiting…

In the meantime, the Washington Post looks at, in quite a reversal, How kids became the strongest argument for same-sex marriage:

As the Supreme Court prepares to hand down what may be a historic decision on whether gay couples have a constitutional right to marry, the children of these couples have been at the heart of the debate. Gay rights activists have turned old arguments on their heads, putting the more than 210,000 American children being raised in same-sex-couple households at the core of their closing arguments.

Advocates have seized on the words of Justice Anthony M. Kennedy, who in striking down the federal Defense of Marriage Act two years ago wrote that the law “humiliates tens of thousands of children” being raised by gay parents. Taking the cue, groups have put these children’s stories front and center in campaign ads, on rally stages and in legal briefs.

Save the children.

More. David Boaz reminds that Libertarians Have Long Led the Way on Marriage.

While on the libertarian angle (yes, I know it’s a tangent), there’s this: gay Libertarian Party members denied a booth and barred from attending Washington State’s 25th anniversary Capital City Pride festival (held in Olympia) for supporting Second Amendment rights.

22 Comments for “Waiting, Waiting…”

  1. posted by Tom Scharbach on

    It is a basic rule of appellate advocacy to argue to the key judges and Justices who will be hearing the the case, shaping the arguments and the issues (in both briefs and oral argument) to the judges or Justices most likely to be the “swing” votes.

    In the 7th Circuit, the arguments were honed to persuade Judge Posner; in the 6th Circuit, the arguments were honed to persuade Judge Sutton. In the Supreme Court, the arguments were honed to persuade Justice Kennedy.

    When I say “honed”, I’m not suggesting that the legal rationale is determined (equal protection is equal protection), but that the facts and arguments deployed to support the legal rationale are sharpened and shaped to appeal to the reasoning of particular judges or Justices, as indicated by opinions/concurrences/dissents in past cases, and the concerns of particular judges or Justices, as understood by the advocates.

    Appellate advocates (e.g. Ted Olson) are not the only ones to “hone” arguments; judges do it as well. The 9th Circuit opinion in the Prop 8 case is a model of an Circuit Court opinion carefully designed to appeal to a particular Justice, Justice Kennedy. Marriage equality was a “bridge too far” at that time, and the Court wiggled out of deciding the issue by relying on standing.

    But after the Court signaled a majority for marriage equality in the cert denials for marriage equality decisions in several Circuits, it was clear that the Court would take up the case, and it was also clear that if Justice Kennedy could be held, the majority would hold. The problem faced by the advocates arguing the 6th Circuit cases is that Justice Kennedy is conflicted — on the one hand, he has been a strong supporter of states’ rights, and on the other, he has been a strong supporter of the “dignity” of gays and lesbians. The trick was to appeal to his support for “dignity” without triggering a “states’ rights” reaction.

    I don’t think that the oral arguments in Obergefell went particularly well, but the Justices pay more attention to the briefs (as I understand it from friends who have clerked for the Court and from legal commentary), and the lead briefs were well and subtly written to hold Justice Kennedy while providing no reason for any of Justices Breyer, Ginsburg, Kagan and Sotomayor) to abandon ship.

    I think that we’ll have a majority opinion (Justices Breyer, Ginsburg, Kagan, Kennedy, and Sotomayor). The wild card is Chief Justice Roberts, who has shown no support at all for an equal protection argument in the relevant earlier cases, but unearthed a minor legal rationale in the briefs (gender discrimination) and seemed to embrace it in oral arguments. The Chief’s comments during orals surprised the advocates and seemed to surpise the other Justices. A lot has been written about the intent of his comment, and whether his comment signaled that he will find a way to come down in favor of marriage equality without embracing the equal protection rationale that the majority will almost certainly follow. If he does, the opinions will be 5-1-3 (majority, concurrence, dissent); if he doesn’t, the opinions will likely be 5-4 (majority, dissent).

    We will likely know on Monday. We might know tomorrow.

    • posted by Mark Peterson on

      I’d feel a lot more confident about tomorrow (or Monday) if the oral arguments had gone better–Bonauto seemed overwhelmed, and Verrilli made an unforced error in response to Alito’s question about tax breaks for religious schools.

      But given how prominently children figured in Kennedy’s Windsor opinion, doesn’t seem surprising they played an important role here, too. And what was the lead case in the 6th Circuit (Michigan) resulted largely from the couple’s inability to adopt, so children always would be central.

      • posted by Jim Michaud on

        Mark, if it’s any comfort to you, the other side did much worse during oral arguments. Well, there went my Thursday prediction.

        • posted by Mark Peterson on

          Agree completely. But Bursch was arguing from a much weaker case.

  2. posted by Tom Scharbach on

    Taking the cue, groups have put these children’s stories front and center in campaign ads, on rally stages and in legal briefs.

    As a side note, I would be careful about lumping the legal arguments and the political arguments together.

    The use of children in legal arguments were honed to appeal to Justice Kennedy’s “dignity” rationale; the political arguments were shaped by poll testing.

    “Equal means equal” is a legal rationale that, as it turned out, never played well in public opinion, however central it might be on the legal front. It is too abstract for public consumption, as it turned out.

    If you look at the history of the campaigns for equality, you’ll see that the political arguments in favor of equality shifted dramatically away from “equal means equal” to “Love is Love” and, eventually, to the needs of children parented by same-sex couples. The shift was poll-tested after the Prop 8 debacle, and I think that was a smart move, as evidenced by Minnesota and other states.

  3. posted by Doug on

    With all due respect, Stephen, it was and is the Progressive Left that led the fight, and fought damn hard, for same sex marriage, not Libertarians. That is not to say that some Libertarians did not support same sex marriage but they were NOT the leaders.

    • posted by Houndentenor on

      Perhaps, but there were Libertarians making statements in favor of gay marriage long before any major Democrats were willing to do so. If they weren’t leading, it was more than hardly anyone was following. The fact that not all libertarians are for gay rights is like pointing out that not all Democrats are either. It’s true, but not really relevant. People who were ahead of the public on gay issues (like the Quakers) deserve credit.

    • posted by Tom Scharbach on

      As Tacitus observed long ago, “Victory is claimed by all, failure to one alone …”, which is sometimes stated in modern context as “Success has a thousand fathers, failure is an orphan.”

      It has been a long, hard road to marriage equality, if, indeed, that is what the Court decides, as most of us think that it will. Many thousands upon thousands of people contributed to the advance of gay/lesbian rights over the last 50 years, in ways large and small, culminating in this decision.

      I think that we should acknowledge the role of the Libertarian Party as an early adopter of marriage equality — years before those of us working within the Democratic Party made any progress — while at the same time acknowledging that the Libertarian Party has not had much impact on the outcome. In other words, we can salute the Libertarian Party while being realistic about the history of gay/lesbian rights movement. The two are not in conflict.

    • posted by Lori Heine on

      The Libertarian Party has supported full equality under the law for gays and lesbians since the 1970’s. The Dems have hedged and fudged around and done whatever was convenient–until they were pushed.

      • posted by Mike in Houston on

        Lori is right on the rhetorical front… But the libertarians had no power to affect change… which is why so many of us worked to move the Dems from hedging and fudging.

        It’s unfortunate that some parts of the GOP have co-opted the Libertarian label while maintaining a statist approach to LGBT rights (not to mention minority and women’s rights)… and Democrats have seemingly forgotten Jeffersonian ideals of localcontr & limited government.

    • posted by craig123 on

      Doug, many LGBT progressives argued strenuously through the 70s, 80s and 90s against marriage as a patriarchal oppressive sexist institution that lesbians and gay people should not emulate. That’s the real history.

      • posted by Houndentenor on

        There were certainly some on the left who did make that argument. No one I know, but I read about them in gay publications, but mostly hear about them from right-wingers. It was never a majority view among gay people, progressives or otherwise.

      • posted by Tom Scharbach on

        Writers in feminist movement (e.g. Kate Millett, Sexual Politics, and Germaine Greer The Female Eunuch) initiated a public discussion about marriage as a “patriarchal” institution that oppressed women in the late 1960’s and 1970’s. The “men’s rights” movement, in turn, began to point out the inequities of marriage (particularly divorce) in terms of preferential treatment of women in economic settlements and child custody decisions. Around the same time, a number of gay/lesbian writers explored the institution, role-dominated as it was in those days, as an inappropriate model for gay/lesbian relationships. The debate goes on even as large numbers of gays and lesbians are electing to marry now that marriage is an available option.

        Obviously, the feminist writers, the “men’s rights” writers and the gay/lesbian writers all had a point, a point that was, at least in some respects, valid. As the feminist writers pointed out, marriage was, in the 1950’s and 1960’s model of the working husband and homemaker wife, role dominated, and role dominated in a way that assumed/ensured male supremecy. As the “men’s rights” writers pointed out, the institution of marriage was structured at the time to favor alimony payments (needed or not) and mother-custody of the children. And as gay/lesbian writers pointed out, a traditionally structured marriage (man as head of household, woman as helper/facilitator) does work (and can’t work) in a marriage in which two men or two women are the parties to the marriage.

        I think that it is fair to acknowledge that part of our history, but I think that it has to be acknowledged in context. The “traditional marriage is no model for gay/lesbians” writers, arguing as they did against gays and lesbians pushing for marriage, were a fringe element that was swept aside in the push for marriage among mainstream gays and lesbians, having as little influence on the outcome on the center-left and left as the Libertarian Party’s demand for equal treatment of gays and lesbians did on the center-right and right. Both are historical footnotes, correct in theory perhaps, but with little or no result.

    • posted by Tom Jefferson III on

      Hmm. Good point. I cannot think of too many libertarians who took a leadership position in the American marriage equality campaign, at least not until fairly recently.

      It is possible that during the Reagan Revolution (roughly 1980 – 1992), many libertarian supported Reaganism and were willing to “overlook” what the New Right had to say about LGBT rights.

      I believe that Cato Institute and the Institute For Justice got involved with gay rights in 2003, with the Lawrence v. Texas decision. Their briefs are — to their credit — well done and helpful.

      I believe that both interest groups have been involved in gay rights cases since then (including marriage equality), but it looks like they preferred to avoid the issue during the Reagan Revolution/New Right.

  4. posted by Houndentenor on

    This was the point at which the case for Prop 8 came apart: when the anti-gay witness was asked if the children being raised by a gay couple wouldn’t be better off if their parents were legally married. Obviously they would. I have known gay couples raising kids of decades now. It’s not the only reason for gay couples to get married but it undermines the religious right’s #1 “argument”: what about the children. What about them, indeed.

  5. posted by Jorge on

    Waiting is right. Why do gays always get served last by the Supreme Court?

    • posted by Mike in Houston on

      Answer: to give Scalia and the rest of the GOP time to get out of DC.

      Or as Scotusblog notes, it’s all about when the arguments were heard and who’s writing the opinion.

    • posted by Houndentenor on

      I suspect they’re just released when they are ready. I wouldn’t read much into the timing of any of the decisions.

    • posted by Tom Scharbach on

      The Court releases opinions as the opinions are final.

      Usually, the length of time needed to finalize an opinion is a function of when the oral arguments were heard, the complexity of the opinions (majority, concurring, dissenting) and the interplay between them.

      As a general rule, the “easy” cases (the ones in which the Court coalesces and the fault lines between majority/dissent are clear) are finalized more quickly than the “hard” cases (the ones in which opinions are drafted/redrafted over and over in order to hold the majority, and in which dissents respond to the shifting language of the majority opinion as it emerges over time) are finalized last.

      I don’t know how accurate this is, but I’ve read a lot of comment from the writers at SCOTUSBlog (and elsewhere) to the effect that opinion writing in the “hard” cases usually doesn’t get going in earnest until after the April oral arguments are over and done with, because the Justices want to be free to concentrate on the opinion process before tackling the “hard” opinions. That observation makes a certain amount of sense.

      Yesterday’s opinions were issued with respect to cases from the January (Texas Department of Housing) and February King v. Burwell) sittings. Remaining are five cases, one (Arizona Redistricting) from the February sitting, one (Michigan v. EPA) from the March sitting, and three (Johnson, Obergefell, and Glossip from the April sitting.

      It is just a guess, but I’ll bet we get Arizona Redistricting, Michgan v. EPA and perhaps one of the April cases today, with the ones not handed down today coming on Monday.

  6. posted by Tom Jefferson III on

    Third parties in America often become early proponents of ideas that — eventually — get popular enough to be picked up by one or both of the major parties.

    The Libertarian Party platform on LGBT rights has remained unchanged since its creation in the early 1970s. Technically, they do not want the government involved in marriage, beyond the enforcement of voluntary contracts, but the party has — most of the time — objected to any government discrimination against LGBT citizens.

    The Green Party — created sometime in the 1980s — has also backed equality since its creation (at least, on paper)

    A couple of the recent Supreme Court opinions were interesting to read; It was odd to see the case involving sign regulations — not a LGBT rights issue — make it all the way to the Supreme Court. It seemed like such a blatant case of government sanctioned discrimination against citizens based on their religion. Did the city lawyers (or who ever argued in favor of the rule) really expect to win?I have mixed feelings about what the court said about freedom of speech as it applies to State car plates.

  7. posted by Tom Jefferson III on

    The updated comments on the Libertarian Party being denied a booth at a gay pride festival (if 100% true) reminds me just how poorly OTHER pride events are planned, in comparison to the one in the Twin Cities.

    The Libertarian Party of Minnesota has never — to my knowledge — had any difficultly participating in Twin Cities Pride. One year I think they got to be in the front of the parade because the pride planners liked their costumes or something)

    We also have a Grassroots Party and a Green Party (and a few Socialist parties) that have had a booth or table at pride. The centrist Independence Party as well. I seen Stonewall DFL and Log Cabin Republicans have their own booth as well.

    Businesses groups and corporations certainly have a presence, but you can just as easily find a booth for non-profits and organized labor. Some pride planning events get bogged down in whether or not they should welcome business groups or labor groups.

    Twin Cities Pride is not without its faults — the planning committee has struggled with some debate about affordability issues (in terms of certain groups being able to afford space), but it generally does not get bogged down in some of this silly stuff as much.

  8. posted by Tom Jefferson III on

    Yes, the gay pro-life group at Twin Cities pride was always a bit creepy (IMHO), but they had a booth along with Planned Parenthood.

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