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Some Final Reactions From Observers Of The Supreme Court Re: Prop 8

The United States Supreme Court, Washington, D.C.

The United States Supreme Court, Washington, D.C.

The United States Supreme Court heard oral arguments regarding Prop 8 today, and the possible outcomes are too numerous to note; though, it does appear to be fairly good for the LGBT Community. This has a lot to do with the fact that no matter what the outcome is, there will likely be a victory for the LGBT Community woven into it.

The Family Equality Council has issued a statement regarding the line of questioning from Justice Anthony Kennedy in response to various arguments from lawyer Chuck Cooper. Kennedy actually noted that there are tens of thousands of California children with lesbian and gay parents and that “They want their parents to have full recognition and legal status. The voice of those children is considerable in this case, don’t you think?”

The FEC has been the biggest voice regarding the children of LGBT parents, and filed an amicus brief with regards to it. FEC Director of Public Policy Emily Hecht-McGowan stated“Justice Kennedy gets it. It would be impossible for the nine justices to fully understand the issues before the Court in these cases without considering the real life experiences of children raised by same-sex couples.”

She went on to say “Discrimination has never made a family stronger, made a child feel safe, or created a home. Denying the responsibilities, commitments, and legal ties that marriage brings only harms families.”

Meanwhile, The National Center for Lesbian Rights Executive Director Kate Kendall offered her thoughts on the oral arguments:

The argument itself was fascinating. Many others will offer blow-by-blow accounts, so I will just hit some high points here. It appeared right away that a number of the justices are skeptical about whether the proponents of Prop 8 have legal standing—a legal right—to be in court at all. If a majority of the justices find that the proponents do not have standing, then the District Court ruling striking down Prop 8 will be the final word—and same-sex couples will be free to marry in California again.

It is also possible that at least five justices could rule on the merits of Prop 8, finding that it violates the provisions of the federal Constitution, which guarantee that all of us will be treated equally under the law. I think this outcome is less likely than a ruling on standing, but several justices, including Justices Kennedy, Breyer, Sotomayor, Kagan, and Ginsburg all asked questions strongly suggesting that they recognize that excluding same-sex couples from the freedom to marry is unsupported by any legal justification.

There were several gripping moments. At one point Justice Sotomayor asked Charles Cooper, counsel for the Prop 8 proponents, if a state would ever have a legitimate reason to use sexual orientation as a basis for denying gay people rights or benefits, aside from marriage? Cooper’s response: “I do not have anything to offer you in that regard.” In other words: No. This was a damning admission. Of course, Cooper went on to assert that marriage is unique and that permitting same-sex couples to marry would be harmful. Justice Kagan jumped in and asked Cooper to be specific about how allowing same-sex couples to marry would cause harm. Cooper answered that “over time there could be harms.” Justice Kagan pressed, “But what is the actual harm? Where is the cause and effect?” Cooper responded by saying that it was “impossible to know, no one could know the long-term implications.” Justice Kagan, and several other justices, did not seem persuaded by that non-response.

Undeterred, Cooper pressed the argument that marriage equality would create a “genderless institution” that supposedly would “sever the connection of marriage to procreative purposes.” Several of the justices seemed to find this assertion dubious. Justices Kagan, Breyer, and Ginsburg all put forward questions or hypotheticals about couples over 55 or individuals in prison—all of whom can marry. This exercise showed that the argument that marriage is about ensuring responsible procreation is finally gasping its last, feeble breaths.

In short, the arguments of our opponents at the Supreme Court were every bit as fatuous, empty, and absurd as they ever have been—and that seemed obvious to at least a majority of this audience of nine. Justice Scalia was irascible and tried at several points to make Cooper’s argument for him, which, trust me, is a very bad sign if you are the lawyer being thrown such a lifeline. I am not sure we will ever win over Justices Thomas or Alito. But a majority of the Court made comments that suggested they see same-sex couples through a lens of shared humanity—if not full equality.

Encouraging words, but the honest truth is we may not know for some time what the outcome of this day’s arguments were. Tomorrow, the Defense of Marriage Act takes center stage.

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