Also in Slate, Walter Dellinger looks at whether the Prop. 8 case should even be in the appeals court in the first place.
The Romer argument has a flaw: It would allow the California Supreme Court ruling to trump the voters. That's not how California's system of initiatives is supposed to work, Cooper pointed out. Smith stepped back in to have another go at finding a rational basis. Framing his question again in terms of California's decision to give same-sex couples civil unions while withholding marriage, he said. "I'm trying to find the rational basis in this particular situation, when California has gone as far as it has. I'm wondering if it's not just to market the marriage of a man and a woman—is that enough for rational basis?"
"It's to preserve the institution of marriage for the purposes it has always served, which in turn flow from the unique procreative capacities of men and women," Cooper answered. And that was it—all the boilerplate he could repeat.
When Cooper sat down, it was Ted Olson's turn to argue on behalf of the same-sex couples who brought this case to trial. (David Boies, the other half of this team, argued the standing question in the first hour.) Olson got hung up on words for a minute, too—he doesn't like the terms "gay marriage" or "same-sex marriage," he said, because the Supreme Court has never defined marriage as straight or opposite-sex. Of course, no one has asked the justices to do that yet. Judge Reinhardt dryly pressed Olson to answer the question: Is marriage a constitutional right "you can't take away," once it's been given? Olson finally said yes and he also gave his approval to deciding the case on the narrower basis of following Romer.
Then Olson turned back to the rational-basis test. He reminded the court of the "yes on 8" campaign, which framed the initiative as a means to "protect our children." (This was evoked at trial by a Proposition 8 witness, Hak-Shing William Tam, who testified that the campaign messages were designed to convince people that "gay marriage will encourage more children to experiment with the gay lifestyle, and that that lifestyle comes with all kinds of disease.") The Proposition 8 campaigners also said that the law "needs to be enacted because the existence of same-sex marriage will make children prematurely occupied with issues of sexuality," Olson said. "That is nonsense." Such a justification would equally warrant banning comic books, video games, and "conversations with other children." This won the afternoon's biggest laugh. Olson ran with it.
"What conceivable thing can we conceive of that would justify doing the damage that's being done to our citizens of California?" he asked rhetorically. "What is it?"
Beware the rhetorical question. Sometimes, a judge will answer it. "Hang on, maybe I can suggest a couple of things," Smith said. "Do you believe in the idea of distinguishing marriage from domestic partnership in name only as a vehicle to promote it for responsible procreation? Since all things being equal, children are most likely to thrive when they are raised by the father and mother who brought them into existence? Would that be a rational basis?"
Olson replied that this was "flatly at odds with the evidence." Smith essentially conceded that this was true about the evidence that was presented at trial—quite a comment on the dismal record the Proposition 8 backers have created. But the appeals court isn't necessarily confined to that record, he said. Olson pointed out that no one at trial showed that the children of gay couples are by any important measure at a disadvantage. It used to be that gay-marriage opponents could credibly utter such warnings. Now research shows definitively that the kids of gay couple fare just as well as the kids of anyone else. The American Psychological Association filed a friend-of-the-court brief in this case to say just that. Maybe Smith can somehow convince himself this is true, anyway. But he's not going to win over Judge Reinhardt or Judge Hawkins. They made that clear today.
It's hard to see, in fact, how such an utterly groundless argument could persuade the entire Ninth Circuit, if the court as a whole votes to rehear the case after the panel issues its decision. What about Justice Anthony Kennedy if the case goes to the Supreme Court? That's the elephant-on-the-table question for another day.
For now, I keep marveling over a line Justice Sandra Day O'Connor wrote in her concurrence in Lawrence v. Texas, the 2003 decision striking down state sodomy laws. Lawrence didn't presage gay marriage, she promised, because "preserving the traditional institution of marriage" is a legitimate state interest. She didn't say why. Seven years later, it's hard to see how she could fill in that blank. This takes us back to Judge's Smith question about "marketing": Is tradition for tradition's sake a good enough reason to exclude gay couples from marriage, as a right and an institution? Doesn't there have to be more to it than that?
In fact, Charles Cooper did offer an additional, more convincing rationale for upholding Proposition 8. He reminded the judges that if they strike down they law, they will be taking the definition of marriage away from the voters. This is a concern many gay-rights advocates share: A court case is a less democratic means to their end than an election or a vote by a legislature. But this is a problem of process, not substance. For better or worse, Proposition 8 is before the court. It had a bad day there.