Gayle Madwin (queerbychoice) wrote,
Gayle Madwin

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Prop 8 Arguments, Summarized

The actual transcript is here. Below is my summary.

Cooper Argues for the Sponsors of Prop 8

COOPER: My clients have standing to bring this case.
SCALIA and KENNEDY: We do think so! They do have standing!
BREYER: I'm not sure. We need to think some more about standing.
COOPER: Anyway, marriage can't be allowed between same-sex couples because, well, it hasn't been in the past. Not ever at all anywhere, because I am hopelessly ignorant of history. Also, babies! Same-sex couples don't have them the right way.
GINSBURG: Sexual orientation discrimination is a form of sex discrimination, so it should be subject to heightened scrutiny.
KENNEDY: I'm afraid Ginsburg might be right. But that makes me uncomfortable, so I'm trying really hard to find a way to avoid that conclusion. I just haven't found a way quite yet.
SOTOMAYOR: Ginsburg is right.
KAGAN: Well, Prop 8 doesn't even pass rational basis scrutiny.
KENNEDY: Kagan may have a point. Hmm. I'll make a point of not seeming fully decided here, because I don't want to ruin the suspense. I like how everyone is paying so much attention to me!
SCALIA: Cooper is incompetent, so I'll take over and argue his case for him. Obviously, gay people should not be allowed to get married, because they should not be allowed to raise children.
KENNEDY: But the 40,000 children being raised by same-sex couples in California want their parents to be allowed to get married. Think of the children! Oops, did I tip my hand? Pretend you didn't hear that. Carry on.
BREYER, KAGAN, and GINSBURG: People don't have to be capable of having children together to be allowed to get married.
SCALIA: Oh, shut up. I'm not listening to you people. See my fingers in my ears? La la la la la la la.
COOPER: In conclusion, marriage licenses exist for the purpose of preventing old married heterosexual men from impregnating younger women who are not their wives. I will of course completely ignore both the obvious question of what on earth is wrong with also preventing old same-sex-married bisexual men from impregnating younger women who are not their husbands and also the fact that my own marriage license didn't prevent me from cheating on my own wife.

Olson Argues for Same-Sex Couples

OLSON: The sponsors of Prop 8 do not have standing to bring this case.
KENNEDY, ALITO, and SCALIA: They do too have standing!
ROBERTS: No, they don't have standing. Maybe we can give standing to somebody else and they can appeal, so we'll be able to drag this case out for even more years.
SOTOMAYOR and BREYER: Yes, it seems like somebody ought to have standing, but maybe not these particular people.
OLSON: Anyway, marriage is important to people. Preventing couples from getting married makes them feel very, very sad, and it's not fair to do mean things like that to people just because the people they want to marry are of the same sex as them. There isn't any good reason to be mean to them like that.
ROBERTS: But that's what we've always done in the past, so obviously that makes it perfectly okay.
SCALIA: I completely agree. Since I don't see gay people mentioned in the Bill of Rights, there can't possibly be any right to same-sex marriage. I mean, if there were such a right, when could it possibly have started existing?
OLSON: It started existing when we as a society decided to just assume that surely scientists are going to discover a gay gene any moment now and so we assume that gay people can't control themselves.
ALL NINE JUSTICES: Let's just silently fail to take any notice of how Olson just threw his clients under the bus by implying that the moment that either a gay gene is proven not to exist or a gene therapy is developed to eliminate the gay gene (one or the other of which will surely happen eventually), it's okay to rescind the right to same-sex marriage and tell all the same-sex couples that they should just break up with each other and convert to heterosexuality if they want any rights.
KENNEDY: Making a broad ruling that would affect states other than California seems way too scary for me, but the Ninth Circuit's excuse for not doing that was stupid. Could you please give me an actual decent-sounding excuse that will allow me to avoid letting most same-sex couples in the country actually get married yet?
ALITO: But gay people in California aren't fundamentally different from gay people in other states, are they?
ROBERTS: No same-sex couples anywhere can be allowed to get married because that just doesn't count as marriage. It just doesn't.
SOTOMAYOR: If we allow same-sex marriage, do we have to allow polygamy?
OLSON: Of course not, because having one spouse is a different thing than having more than one spouse. Having more than one spouse is a lot more complicated.
SOTOMAYOR: Well, I agree with Kennedy that making a broad ruling that would affect states other than California seems way too scary. Could you please hurry up and give us a decent-sounding excuse that will allow us to avoid providing justice to any same-sex couples outside of California?
KENNEDY: The problem is that we have no idea what would happen if we allowed same-sex couples to get married, because even though we've been doing that already in Massachusetts for almost a decade and in other countries for longer, I'm sure no one has actually collected any data whatsoever about the results. Oh, this is so terrifying! I don't want to have to make this decision right now! Why in the world did we agree to decide this case at all?

Verrilli Argues for the Department of Justice

VERRILLI: We really don't want to take any position about standing, but I guess if we have to, we tend to think that the sponsors of Prop 8 don't have standing.
ALITO: I can hardly wait to hear what you're going to say about standing in the DOMA case tomorrow. This one today is so much less interesting.
VERRILLI: Anyway, my main point is that it's wrong to prevent same-sex couples from getting married, so we should only prevent them from getting married in states where the homophobes are really insistent about it.
GINSBURG: That doesn't make any sense. Either same-sex couples have a right to get married or they don't.
VERRILLI: Well, yes, but it's just easier for us if we only focus on the states where they have civil unions or domestic partnerships. The same-sex couples in other states can file their own separate lawsuit. That way, a lot more different lawyers will get the chance to make money while we're delaying people's weddings for years and years.
BREYER: I'm a good person who cares about making same-sex couples' lives better. However, because I'm completely out of touch with the way people under the age of 70 think about these issues, I think that taking away civil unions as an option would cause most states to just never give same-sex couples any rights at all. So I think it would be better to let same-sex couples have civil unions. And of course, like Kennedy and Sotomayor, I certainly wouldn't dare to actually do my job and tell all the states that they're required to let same-sex couples marry.
ALITO: This is all just much too soon! We really need to wait at least two millennia after same-sex marriage has been legalized before we can possibly justify legalizing it.
SCALIA and ROBERTS: Yes, exactly! We totally agree with Alito.
SOTOMAYOR: I'm so confused. I just need to figure out what makes same-sex couples outside of California not deserve to get married, because obviously we can't go letting them all get married. That would just be way more weddings than we could possibly expect the American people to accept.

Cooper's Rebuttal

KENNEDY and SOTOMAYOR: Tell us again why we should have to bother deciding this case right now at all.
COOPER: Because everyone but you wants it to be decided.
SOTOMAYOR: We avoided bothering to end racial segregation for 56 years, so I don't see any reason why we can't postpone same-sex marriage for 56 years also. It's only fair to discrimate equally against gay people and people of color, right?
SCALIA: Didn't we already agree to make a decision in this case? That's why the lawyers are here making arguments, isn't it?
COOPER: Even Verrilli basically agreed that it would be wrong to let same-sex couples in red states get married.
GINSBURG: No, he didn't.
COOPER: Well, let's pretend that he did. The point is that same-sex marriage is just very wrong. And even if it isn't wrong, it's very important to continue encouraging millions of people to vote to call off the weddings of their own children, grandchildren, co-workers, supervisors, next-door neighbors, and so on, because turning people against each other in intense and seriously life-damaging ways is what makes America great.

In conclusion, having the right to same-sex marriage decided by nine heterosexuals who are mostly from generations more or less oblivious to the existence of gay people is really not an ideal situation at all. Ginsburg and Kagan are only people who didn't infuriate me. Kennedy, Sotomayor, and Breyer want to do the right thing but are terrible cowards. Ginsburg and Kagan may very well be equally terrible cowards; they just didn't clarify whether they are or not. Scalia hates gay people, and Roberts and Alito do too, although perhaps with slightly less venom than Scalia (only because I'm not sure anyone else can hate gay people with as much venom as Scalia does, with the possible exception of Fred Phelps). The ever-silent Thomas is presumably in the Scalia-Roberts-Alito camp. That gives us four vicious gay-haters and three to five terrible cowards who know what the right ruling would be but can't bring themselves to actually make it.

This court case is still very extremely likely to restore same-sex marriage in California. However, the Supreme Court looks unlikely to bring same-sex marriage to any state other than California anytime soon.
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