Today SCOTUS held hearing on California’s Proposition 8 (Hollingsworth). John Eastman sorted out the issues on the hearings in his legal memorandum, The Constitutionality of Traditional Marriage. Here are his key points on the hearings today and yesterday.
- In Windsor and Hollingsworth, the Supreme Court will consider the constitutionality of Section 3 of the Defense of Marriage Act, which defined marriage as one man and one woman. Hollingsworth challenges for purposes of federal law; and California’s Proposition 8, which reaffirmed traditional marriage in that state.
- Because the Obama Administration and the State of California declined to defend these laws, the Court first has to consider whether it has jurisdiction to decide these appeals.
- The Court has held that same-sex marriage is not a fundamental right protected by the Due Process Clause. Were the Court to hold otherwise, it would face impossible line-drawing problems in future cases.
- The Equal Protection Clause does not compel recognition of same-sex marriages because same-sex couples are not situated similarly, in relevant respects, to opposite-sex couples. Moreover, policies recognizing only traditional marriage further society’s compelling interests in procreation and child-rearing, among other things.
In addition to the travesty of the courts we have state and federal officials who subvert the law by refusing to defend it. The notion of checks and balances is scuttled when judiciary and executive members decide to legislate through manipulation.
For updates on the hearings at SCOTUS, check out Bench Memos where Ed Whelan and others have been updating their evaluation in a series of short posts. While some of the people at NRO have lost their way on marriage, Whelan has not.
Whelan also filed an amicus brief defending marriage as the Counsel of Record for the Ethics and Public Policy Center on “Lower court misteps and recusal considerations.” His archive of posts has descriptive titles so you can read what interests you. Here are a few from today.
Some early reports from today’s oral argument indicate that some justices may be inclined to rule that Prop 8 proponents lack standing to defend Prop 8 and that the Court therefore lacks jurisdiction to hear the case. A few quick thoughts:
1. I explain in this extensive post from two days ago why I believe that the argument that Prop 8 proponents lack standing is wrong.
2. I’d be cautious about inferring from the oral argument that there is a majority to rule against standing….
3. A ruling that Prop 8 proponents lack standing would mean that the Ninth Circuit also didn’t have jurisdiction….
…Proposition 8 defines an inherent element of what marriage has forever been in California. It no more “bans” “same-sex marriage” than a proper definition of a circle bans square circles. Rather, under Proposition 8, the concept of “same-sex marriage,” like that of a square circle, is an oxymoron, a self-contradiction, an absurdity—just as it has always been under California’s marriage statutes and, until very recently, everywhere for as long as marriage has existed….
While admitting “It’s usually foolhardy to try to infer much from an oral argument,” after review of the hearings Whelan writes, “I’m much more optimistic than some commentators that the Court will find that Prop 8 proponents have standing and will vote to uphold Prop 8.”
He has other comments at Bench Memos regarding specific exchanges between the justices and attorneys. Tomorrow is the hearing on the Windsor case.