Tuesday, March 26, 2013

Arguments in Hollingsworth v. Perry, some thoughts

I've just finished listening to (and reading the transcript of) arguments in Hollingsworth v. Perry before the Supreme Court.

If I were one of the justices I suspect I'd be thinking that the easy way out would be to deny standing to the proponents of Proposition 8. This would mean that the California district court ruling, that Proposition 8 is unconstitutional, would stand. In other words, same-sex marriage in California would be legal. But there would be no impact on the rest of the country.

Is that what SCOTUS will do? No idea. But it's difficult to see what else they could do without sweeping national reform which I think most of the court would rather avoid. (I wonder if the justices who decided Roe v. Wade might today make a different choice with the benefit of hindsight. If that case had gone differently you could argue that there might not be such entrenched partisan feeling about abortion in this country today--not sure I believe that but you could at least make the argument. There again, you could also argue that many, many lives would have been unhappily affected if abortion had remained illegal in many states.)

In terms of tomorrow's case, as a Supreme I'd strike down Section III of DOMA and ensure that in those states where same-sex marriage was legal all married people would have equal access to federal benefits. I can't imagine too many people getting bent out of shape about that, and many, many people benefiting.

My thinking, in this hypothetical case, would be that in three or four years someone in, say, Mississippi would try to get married to her girlfriend, not be able to, and sue, and that case would end up at the Supreme Court. Where--with public opinion moving so fast in our direction that I believe many, many more states will by then recognise same-sex marriage--it would easily and not terribly controversially be found unconstitutional to deny marriage to said couples. And, lo! Nationwide marriage equality! Without entrenchment and political battles for the next fifty years. But I'm not a Supreme...

...And today, frankly, I'm glad. This whole notion of greatest-benefit-for-greatest-number-in-the-long-term, while sensible to a degree, is infuriating and unjust to all of us now, today. Solomon had it easy.

It'll be interesting to listen to tomorrow's arguments. At which point I'll probably change my mind about everything...



  1. I 100% agree with everything you say here. I think they'll strike down the easy bits to strike down, & then back away slowly. That said, I'm a little worried about Scalia & crew, & I'd sure like a pleasant surprise, but...

    1. The interesting thing to me was hearing them all (except Thomas, of course), even Scalia and Alito, actually wrestling with this. I think they (I can't speak for Thomas, and he never even speaks for himself) are really engaging with this. It's fascinating.

    2. The borderline libertarians on the bench must be having a really difficult time with this, because it cuts across their ideology in such a way that personal preference must be seen as irrelevant. You can't champion individual liberty and then make exceptions...which is what Scalia would love to do.

  2. There's some evidence that abortion rights were being rationalized state by state throughout the Sixties and into Seventies. Even Kansas was poised to put into state law protections of choice and of clinics when Operation Rescue turned the state into a showcase for lunacy. The argument goes that had this process been allowed to continue, there would have been a tremendous bedrock of state support which would have made the reaction erratic and decentralized. Taking it to the SCOTUS essentially politicized it as a national issue. That judgment made state measures seem irrelevant, which was a big mistake, and by giving the anti-choice movement a national focus they found their footing and we have the mess we have today.

    My problem with that is the time it would have taken and the lives affected negatively while we all wait for state by state rationality. Probably a lot of people felt the same way. If the current SCOTUS does overturn Prop 8 and make national policy, it would be a good thing to continue pushing the legal groundwork through state by state, just in case.

    1. I think demographics are taking care of this even as we speak. I think this is now unlike the abortion debate because, politically, it's moved out of the morality arena.

      Whatever happens--even if SCOTUS punts on both cases--lesbian and gay married couples will by July have federal benefits. Then the games really begin...