The Silicon Valley economic case against California's Proposition 8 and for same-sex marriage did not surface during yesterday's oral argument at the US Supreme Court.
I listened to an audio file of the argument in Hollingsworth v. Perry, after the fact. Here's my take.
Cooper, the attorney for several sponsors of Proposition 8, attempted to launch into rhetoric about the wisdom of ages past, but the Chief Justice cut him off and insisted that he address first a procedural question, namely, whether Cooper's clients had standing to press a case in federal court.
Olson, a former Solicitor General of the United States during the G. W. Bush administration, did manage, slyly, to make a moral statement at the top of his remarks. He did it by acknowledging first that he knew the Court would want him to address the standing question, and stating an intention to get to that subject right away. And then he proceeded to frame the case in terms of the stigma imposed on gay and lesbian people by the same-sex marriage ban.
Because I was listening to a sound recording, I couldn't see the Chief Justice's face, but I imagine he felt bushwhacked by Olsen's tactic. At any rate, the Chief Justice, invoking fair play, eventually cut Olson often, too, but not before Olson had laid out more of his set speech than Cooper had his.
Olson was good, but in almost every respect he had the easier assignment. We are already on the cusp of a cultural shift, where all recognize there is no rational, moral, economic, child-centered, or healthy emotional reason to discriminate over the sexual orientation of couples who want to marry. Olson did a nice job with the standing questions, but on the substance, he was preaching to the choir.
Given this new reality, Cooper readily conceded there is no legitimate basis on which to discriminate against people because of their sexual orientation, other than with respect to marriage. And even with respect to discrimination in marriage, Cooper seemed loathe to actually cite any loss or harm to anyone from allowing same-sex couples to marry. As if acknowledging his weaker hand, Cooper's tactic was to divert attention from the merits to a question of democratic process: shouldn't the Court should stand down, he argued, and let society continue to have a healthy debate about marriage; because no one can really know what the societal consequences of same-sex marriage will be, wouldn't it be better to allow time to assess the consequences in those states which have already chosen to permit same-sex couples to marry?
Cooper's argument was that of a lawyer trying to win the case at hand. I'd imagine it irks those conservatives who want to defend the federal Defense of Marriage Act, the featured subject at this morning's Supreme Court oral argument. In the DOMA case, the issue is whether federal law can deny the benefits of marital status to same-sex couples who are legally married in those states that have already made Cooper's democratic choice.
Justice Scalia, the personification of the best argument that appointments for life are a bad idea, found Cooper's moral relativism appalling. He demanded that Cooper give concrete examples of how same-sex marriage could cause societal harm. And Scalia didn't wait for Cooper to provide an example. Scalia provided one: the adoption of children. It could be, Scalia argued, that a state wouldn't want same-sex couples to marry, because that would mean gay couples could adopt children. (Was Scalia not aware that it is legal for same-sex couples in California to adopt children?)
If Cooper was rolling his eyes, I didn't see it, but he didn't sound like Scalia was doing him any favors. Cooper did utter a canard or two on his own initiative, but, on the whole, he kept to his mission. He tried to define a space where one could feel principled - "we are simply deferring to the democratic process" - about being bigoted.
Not nearly as savvy as Cooper: the brief of the United States Conference of Catholic Bishops, which makes the polygamy argument:
"Though no party to this litigation argues that multiple friendships and polygamous relationships constitute marriage, it is not evident why they would not also qualify as 'marriages' under the Ninth Circuit's novel test."
I know Pope Francis is getting a lot of great press, and I want to keep an open mind about what he has to say about poverty and the distribution of wealth, but the Catholic position on same-sex marriage is medieval and un-Christ like. If the Pope were to withdraw his Church's opposition to same-sex marriage, that might have a bigger impact a judicial thinking than even the conversions of Senator Portman and other Republicans.
Photo from yesterday: Ted Eytan / Flickr.