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Hollingsworth v. Perry (formerly Perry v. Schwarzenegger):
The California lawsuit challenging constitutionality of Prop. 8

2012-DEC
Reactions to the U.S. Supreme Court's acceptance
of the case. Speculation on the court's future ruling.

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Continued from a previous essay.

In this web site, "SSM" is an acronym for "same-sex marriage."

Reactions to the decision by the U.S. Supreme Court (SCOTUS) to grant certiorari:

Prop.8 was the citizen initiative in 2008-NOV that -- at least temporarily -- terminated future SSMs in California. On 2012-DEC-07, SCOTUS agreed to hear the case.

Representatives of two conservative Christian groups opposed to marriage equality who are actively involved in the case responded to the granting of certiorari:

• Andy Pugno, general counsel for Protect Marriage.com attacked the fairness of the federal District Court and 9th U.S. Court of Appeals. He said:

  "Arguing this case before the Supreme Court finally gives us a chance at a fair hearing, something that hasn’t been afforded to the people since we began this fight."

• Jim Campbell, lead counsel for Alliance Defending Freedom, issued a statement saying that:

  "Marriage between a man and a woman is a universal good that diverse cultures and faiths have honored throughout the history of Western Civilization."

Campbell seems to have missed the point of the Prop. 8 case. Very few people in the U.S. deny the value of the love, commitment, and benefits to society that marriages of one man and one woman bring to the country. But this lawsuit does not negate this. Rather, it is asking whether marriage should remain a special privilege of opposite-sex couples, or whether it should be extended to include loving, committed couples who happen to be of the same gender.

Senator Dianne Feinstein, Attorney General Kamala Harris, and some other California politicians issued statements urging the Supreme Court to overturn Prop. 8, and restore marriage equality to California. Lt. Governor Gavin Newsom drew a comparison between the Prop. 8 case and the Loving v. Virginia decision of SCOTUS that legalized interracial marriage across the country back in 1967. ₁

Comments by Justice Scalia that may give an indication of his future response in Hollingsworth v. Perry:

On 2012-DEC-10, three days after SCOTUS agreed to grant certiorari in this cases and the case involving the constitutionality of the Defense of Marriage Act (DOMA), U.S. Supreme Court Justice Antonin Scalia spoke to a student group at Princeton University. He is generally regarded as one of the most conservative Justices on the court. Justice Scalia believes in a strict constructionist interpretation of the U.S. Constitution. That is, the document is to be interpreted "today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted." ₆

During a question and answer session, Duncan Hosie, an openly gay student, asked him a question about Lawrence v. Texas which the Supreme Court decided in 2003 by the very common 5 to 4 vote. The majority report took a dim view of laws that criminalized behavior mainly because a substantial percentage of the citizens regarded it as immoral. In his minority ruling Scalia had warned that the Court's decision called into question the constitutionality of:

"state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity."

Scalia called the majority decision:

"... the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct."

Hosie asked him why he equates laws banning sodomy with those barring bestiality and murder.

Justice Scalia replied:

"I don't think it's necessary, but I think it's effective."

He added that he believes state legislatures and Congress have the power to ban behaviors that they believe to be immoral. He continued:

"It's a form of argument that I thought you would have known, which is called the 'reduction to the absurd. If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things? ... My Constitution is a very flexible one. There's nothing in there about abortion. It's [left] up to the citizens. ... The same with the death penalty." ₇

He explained that he is not equating sodomy with murder but drawing a parallel between the bans on both. He explained that interpreting the constitutionality of laws requires that Justices strictly adhere to the words in the Constitution using the meanings of those words at the time they were originally written.

Some students applauded Justice Scalia's remarks, but more applauded the question by Hosie. Afterwards, Hosie said that he was not persuaded by Justice Scalia's answer. He said that he views some of the Justice's writing as dehumanizing gays. ₇

Scalia's comments triggered a firestorm of comments in the media discussing whether or not he should recuse himself from the new case because he is so obviously biased against the LGBT community. Alison Frankel wrote in her On The Case column:

"I put the question to six prominent Supreme Court litigators. They were unanimous: There's no reason whatsoever for Scalia to recuse himself from the gay marriage cases the court has agreed to review. Even George Washington University law professor Alan Morrison agreed -- and he famously earned Scalia's enmity when, as counsel to the Sierra Club in a 2004 case against former vice president Dick Cheney, he moved for the justice's recusal, citing Scalia's duck-hunting trip with Cheney.

According to all of the lawyers I talked to, Scalia's dissent in the Lawrence case does not suggest he cannot be impartial in the gay marriage cases. After all, if we were to assume that the justices' prior rulings were grounds for recusal, every justice would be able to hear only one case on any particular issue. That would leave a notably depleted bench for recurring Supreme Court issues like affirmative action and campaign spending, to name just a couple of examples. ' You can't recuse somebody because they've expressed prior views in judicial opinions,' Morrison said.

To argue otherwise would undermine the authority of the court. As Scalia himself noted in an opinion denying the Sierra Club recusal motion, there's a high cost to the law when any justice steps aside because there's no one to take his or her place. ' The court proceeds with eight justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case,' Scalia wrote. He went on to quote from the Supreme Court's 1993 statement of recusal policy: ' We do not think it would serve the public interest to go beyond the requirements of the statute.... Even one unnecessary recusal impairs the functioning of the court'." ₈

Speculation about how SCOTUS will rule in the Prop. 8 case:

• George Will is a syndicated conservative commentator and an ABC News personality. He noted that just 31 days before SCOTUS' decision to grant certiorari, voters in Maine, Maryland, and Washington state legalized SSM via the ballot box. These votes were proceeded by Prop. 8 and about 30 other consecutive referendums in which voters either rejected SSM or voted to prevent SSM in their future. Will suggested that now:

  "... the question is, how will that influence the court? It could make them say, 'It’s not necessary for us to go here.' They don’t want to do what they did with abortion. The country was having a constructive accommodation on abortion, liberalizing abortion laws. The court yanked the subject out of democratic discourse and embittered the argument. They may say we don’t want to do that, we can just let the democracy take care of this."

  That is, the court could find the Prop. 8 referendum constitutional and leave SSM up to the people of California to resolve democratically through a future plebiscite. That decision would undoubtedly trigger a new citizen initiative, probably in 2014, to repeal Prop. 8. With the recent surge of support for, and rapidly dropping opposition to, SSM nationally and in California, the new referendum would be almost certain to pass and restore marriage equality to California.
  
  Will continued:

  "On the other hand, they could say it’s now safe to look at this because there is something like an emerging consensus. Quite literally, the opposition to gay marriage is dying. It’s old people." ₂

  That is, SCOTUS might look at the national polling data over the past decade and a half during which support for SSM has increased over 20 percentage points, while opposition has decreased by over 20 percentage points.

₃

Deeper analysis of the data by age shows that older teens and young adults are overwhelmingly in favor of SSM, while seniors are mainly opposed. This situation should continue the trend of 1 to 2 percentage points increase in support per year and 1 to 2 percentage point reduction in opposition per year into the future for the simple reason that young voters will outlast older voters. A majority of Justices on the court might conclude that a consensus favoring SSM is emerging, and that rule Prop. 8 unconstitutional.

• Greg Quinlan is president of Parents and Friends of Ex-Gays and Gays (PFOX). This is a conservative Christian group that supports lesbians, gays and bisexuals. One News Now, a conservative Christian news source, wrote that Quinlan is concerned that SCOTUS will "overrule the will of voters, the Constitution, and majority vote in order to advance the 'gay' agenda." He said:

  "We are in a very precarious situation right now. ... We're seeing over and over again that there are places where the Constitution doesn't matter, the will of the people doesn't matter, majority vote doesn't matter. So I am concerned about the direction we are headed." ₄

• Ted Olson and David Boies, the two lead attorneys for the plaintiffs, commented to reporters immediately after learning that SCOTUS had decided to accept the case. Olsen said:

"We felt all along that this case was a perfect vehicle to decide the fundamental rights of all Americans with respect to the right to marry." ₅

Boies said:

''We are now literally within months of getting a final resolution of this case that began three-and-a-half years ago." ₅

SCOTUS is expected to hear oral arguments in the early Spring and render their decision in 2013-JUN. Boies added that he and Olson hope that SCOTUS will widen the scope of the appeal to address the fundamental issue of whether it is unconstitutional to discriminate against same-sex couples' right to marry everywhere in the U.S. He said:

"And if they decide that [our way] -- as we're confident they will if they reach that issue -- ... that would mean there would be a fundamental right [for same-sex couples] to marry in every state in the country, because obviously the federal Constitution applies to every state in the country." ₅

The case being reviewed by SCOTUS is Hollingsworth v. Perry -- formerly called Perry v. Schwarzenegger. The federal District Court ruled very broadly that marriage is a fundamental human right for both opposite-sex and same-sex couples. Neither legislators through the state government nor voters through a referendum can prohibit SSM.

The 9th U.S. Court of Appeals narrowed the scope of the case considerably. They ruled on a rare situation in which same-sex couples had been granted the right to marry, and a subsequent citizen initiative like Prop. 8 had terminated that right. They concluded that the initiative was unconstitutional.

Some commentators suggested that this narrowing of focus was designed to influence Justice Kennedy who is often the swing vote on the high court. On 2012-DEC-07, SCOTUS accepted the case for review.

This topic continues in the next essay

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. "Supreme Court's Prop. 8 case: Big stakes for California," Los Angeles Times, 2012-DEC-07, at: http://latimesblogs.latimes.com/
2. Pete Winn, "George Will: 'Opposition to Gay Marriage is Dying – It’s Old People'," CNS News, 2012-DEC-10, at: http://cnsnews.com/
3. Nate Silver, "Support for gay marriage outweighs opposition in polls, Five-ThirtyEight Blog, 2012-MAY-09, at: http://fivethirtyeight.blogs.nytimes.com/
4. Becky Yeh, "Prop. 8 in the High Court," One News Now, 2012-DEC-12, at: http://www.onenewsnow.com/
5. Justin Snow, "Supreme Court Showdown: With Prop. 8 and DOMA heading for SCOTUS, historic hope mingles with quieter caution," Metro Weekly 2012-DEC-11 at: http://www.metroweekly.com/
6. "Constitutional Interpretation," U./S. Constitution Online, at: http://www.usconstitution.net/
7. "Scalia Quizzed at NJ's Princeton on Gay Issue," ABC News, 2012-DEC-11, at: http://abcnews.go.com/
8. Alison Frankel, "Should Scalia step aside in gay marriage cases?," Reuters, 2012-DEC-12, at: http://newsandinsight.thomsonreuters.com/

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Copyright © 2012 & 2013 by Ontario Consultants on Religious Tolerance
Original posting: 2012-DEC-07
Latest update: 2013-MAR-24
Author: B.A. Robinson

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