26 3 / 2013
For those of you who don’t want to read the transcript of the oral argument in Hollingsworth v. Perry, which is all of 82 pages long, or whose heads exploded when you tried to read it, I’ve written a helpful summary. It’s available below the jump.
This summary is still fairly long, but it’s shorter and I’ve worked to make things as accessible as possible to those without legal training.
As a result, there are some places where I might have oversimplified the legal argument. My summarizing might be partially colored by my personal viewpoints, but this is basically what happened, plus or minus the aliens eating children.
Oral argument starts with Charles Cooper speaking on behalf of the petitioners, who are not in favor of same-sex marriage in California.
COOPER: Thank you, Mr. Chief Justice, and may it please the Court. Today, we—
ROBERTS: In keeping with the practices of this Court, we don’t allow anyone to complete a full sentence before interrupting them. Tell us why the people who hired you should even be allowed to bring a case.
COOPER: Because California said so.
GINSBURG: So? We’ve said before that in order to be able to bring a federal case, you have to have an injury in fact, something that is specific to you.
COOPER: But these people were injured. They didn’t want gay people to marry, and now look! Gays. Lesbians. Able to marry at will. It’s very injurious. They’re injured just thinking about it.
GINSBURG: Assuming that counts as an injury, doesn’t everyone suffer from the same injury? How is this an injury specific to them?
COOPER: … Er, these people suffer more because they really don’t want gay people to marry. And California has said that if you don’t want something enough to put an initiative on the ballot—
ROBERTS: Since when does California get to decide questions of federal standing?
SOTOMAYOR: Because, you know, officers like the attorney general take oaths to uphold and defend the Constitution, whereas these assholes—I mean, the people bringing this case have no such duties.
COOPER: The Court has never held that.
SOTOMAYOR: We’ve never had a case like this.
BREYER: I’m going to ask you an extremely long question riddled with nonspecific nouns, and you’re going to have to guess what I mean by it.
COOPER: I’m pretty sure the answer is no? But let’s stop talking about whether I should be allowed to talk, and get on to what I’m going to be talking about. Which is: nostalgia. Nostalgia for the good old days of traditional, bedrock values. Man, back in 1971, this Court said there was no federal question as to same-sex marriage. Those were the fucking days.
GINSBURG: The Supreme Court hadn’t even recognized gender-based classifications then.
COOPER: Are you harshing on my nostalgia?
FANTASY GINSBURG: I was alive back then, and trust me, I am not feeling particularly nostalgic for the time.
KENNEDY: Should we treat this as a gender classification?
COOPER: It would be very inconvenient for me if you did, honestly, but it’s hard to avoid that conclusion given that we keep using words like “male” and “female.” But ignore language! Gender is irrelevant. Except when determining if people are going to marry. Fuck it, can we just talk about same-sex marriage and pretend that the word “sex” is not in there?
SOTOMAYOR: Aside from marriage, do you think the government can discriminate against gays and lesbians?
COOPER: No, that would be wrong.
SOTOMAYOR: Then what the actual fuck are you doing standing up here?
COOPER: Ah. Aha ha. Did I say, “no”? I meant yes! I thought you meant, you know, discriminate without reason. I realize I’m a high-powered lawyer who should not have been confused by that question, but everyone makes mistakes. Sure, the state can discriminate. But it has to have a really good reason.
KAGAN: So what’s the reason here? Looks like it’s all about procreation.
COOPER: Indeed. Gays and lesbians—sad fact, they cannot procreate.
KAGAN: Yeah, that explains the reason for marriage. What’s the reason for excluding gays and lesbians from marriage?
KAGAN: Because, see, they’re still gay or lesbian. They’re still out there, having relationships with each other. They’re not going to start procreating.
COOPER: No, probably not.
KAGAN: So they get excluded because…
COOPER: Traditional bedrock of society. Let me say the words traditional and bedrock a couple more times. It’s really all about the tradition. And the nostalgia. The tradition of marriage is one of rearing children together, you know. And we don’t want to disrupt society by making marriage about anything else, like love or affection between two adults.
SCALIA: Tell me, Counsel. Gay marriage: Bad for children, or the worst for children?
COOPER: We really don’t know. Gay marriage is so new. We have no evidence. It could be that gay marriage will cause aliens to descend on this planet and eat the flesh of all children under the age of sixteen. Or maybe not. We just don’t know. We have to think of the children.
KENNEDY: This is extremely persuasive to me.
KAGAN: So what you’re saying is that when there are no longer children to think of, no marriage?
KAGAN: So a state could pass a law refusing to recognize a marriage between people who are both over 55?
COOPER: No, because they could procreate!
KAGAN: I have checked with my girl parts, and they assure me this is not possible.
COOPER: But the dude can procreate. Dudes can always procreate. With…with…maybe…uh…
KAGAN: We are talking about opposite sex marriage here? Two people involved? One of them providing eggs?
COOPER: I’m super-uncomfortable with this discussion of lady bits. Let’s just say, in that case, marriage becomes about making sure the dude does NOT procreate, because, see, he’s married to someone who can’t procreate, and so the interest of fidelity keeps him not procreating in a responsible fashion…
KAGAN: So the state has a marriage interest in both people who procreate and people who don’t procreate. Why is there not the same interest for gays and lesbians?
COOPER: …Oh, wow, would you look at the time! It’s someone else’s turn to talk.
Ted Olson’s turn.
OLSON: We all know that if you don’t decide on behalf of respondents, you’ll be heralded as bigots for generations to come, so—
ROBERTS: Before we get to the question of our bigotry, can we talk about standing?
OLSON: Yeah, they have none.
KENNEDY: But…But this gives executives the right to avoid enforcing laws that people pass.
OLSON: Yes. This happens.
OTHER MEMBERS OF THE COURT: But! But! What about the poor people of California?
ROBERTS: It’s not really all that dire, folks. I can rattle off a bunch of people with standing to sue. Can we move on?
OLSON: You were the one who—never mind, let’s move on.
SCALIA: I’m going to ask you a ridiculous question: When did it become unconstitutional to discriminate against gays and lesbians?
OLSON: It would be bad form at this juncture to say, “Fuck you, Scalia, you just want to grandstand,” so I’m just going to say it’s a nonsensical question.
SCALIA: I’m a nonsensical person. Answer the question.
It’s always been wrong to discriminate. It used to be that society was so bigoted that we didn’t recognize that. Just as there was a time when society was so bigoted that we didn’t recognize that school segregation was wrong.
REALITY OLSON: Can we just leave it at “it’s wrong now” so I don’t have to state uncomfortable truths about your bigotry in open court?
OLSON: Wow, that was even more awkward than any of the moots I did.
ALITO: I found your brief confusing. Are you saying that because California gives gay people more rights, they have to give them the right to marry?
OLSON: No. I’m saying that California has to have a legitimate basis for passing a law. The claim by my opponents is that California has an interest in passing a law restricting marriage for gays and lesbians, because California wants to create a stable environment for children. But since California allows gays and lesbians to adopt children, it is irrational to then say that they are not allowed to create a stable home environment for them.
ALITO: In other words, because California gives gays and lesbians more rights, they have to give them even MORE rights.
OLSON: …No, more like, it demonstrates that the supposed “rationale” behind the law is bullshit. If you care about providing a stable home for kids, you’d care about the 37,000 children being reared in gay and lesbian households in California.
SOTOMAYOR: So let me ask a real question. If marriage is a fundamental right, is the state ever allowed to limit it?
KENNEDY: Enough about gays and lesbians. Can we talk about me for a minute? Because I feel a little uncomfortable with this discussion. In fact, I’m kind of feeling like taking my swing-voting ball and going home. Who wants to dig the case?
[note: dig=acronym for Dismissed as Improvidently Granted]
OLSON: Uh. Kinda staggered here. You want to dig the case? We…we spent weeks preparing for this, the entire country is watching, millions of people could have their lives changed, and you want to dig the case?
KENNEDY: I’m just saying. Oh, Olson, you’re all out of time. Nice ending note, though.
VERRILLI: My turn! Let me just say, standing, there is none, but whatever, who wants to hear about standing?
VERRILLI: Yeah, but who are you anyway? Time for the merits! Equal protection. Who wants some equal protection?
GINSBURG: All the states, I should think.
VERRILLI: Heh. All the states. No, you have to take it in context. In context, only the states that agree to have civil unions have to allow marriage.
BREYER: This is nonsensical.
VERRILLI: Look, we’re trying to find narrow grounds for you to affirm under, if that’s what you’re looking for. Narrow grounds. Affirm. Maybe even 6-3?
JUSTICES, COLLECTIVELY: Yeah, none of us are buying it. It’s probably the only thing that the nine of us agree on.
ALITO: Here’s the real problem. I’m not a bigot, but it’s just that same-sex marriage is so new, and how are we to know if it’s any good? Maybe it’s just two people loving each other. Maybe it will cause aliens to come out of the woodwork and eat human flesh. How are we to tell? I mean, we can’t use logic, because that would tell us that gay people getting married will mean nothing more than gay people getting married. So I have to appeal to a lack of evidence. Can you point to a single study demonstrating that aliens won’t eat the flesh of our precious children if we allow gay marriage?
VERRILLI: … Can we just recognize that if we wait for evidence from Roswell, that we’re imposing a real cost on real people?
ROBERTS: Sure, if you recognize that saying that some states need not allow same-sex marriage imposes those same costs.
VERRILLI: I can see that my attempt to take a narrow middle ground is doomed to failure. Now I’m going to hedge further—if you guys WANT to be broad and allow same-sex marriage everywhere, I guess I’m okay with that.
ROBERTS: I think we need to talk to Cooper again. Cooper?
KENNEDY: Hey, Cooper. Let’s talk about me again. Seriously, should we dig this case?
COOPER: No. Please. No. It’s not like there’s no record here. It’s not like there’s weird factual issues that are left unresolved by the lower court. All the normal reasons for digging are inapplicable.
SOTOMAYOR: Okay, but lemme explain how the Supreme Court works. We’re actually terrified of screwing up. That’s why we mainly take cases where there’s a circuit split—because then there’s a lot of arguments on both sides. We’re all kind of freaked out here, because no matter what we decide, someone will be out for our blood. We avoided doing the right thing on racial segregation as a court for 50 years. Why not do this here?
COOPER: 50 YEARS? Are you serious?
SOTOMAYOR: Well, maybe four. What do you think?
COOPER: I think this is a very bad idea. I think my clients would not like that at all.
SCALIA: I can’t believe I’m hearing this. You fuckers granted cert in the first place.
[editorial note: Only thing Scalia said all argument that I agreed with!]
GINSBURG: We often meander around decisions before declaring things unconstitutional. I see no reason to be direct today. We could stretch this process out for a decade or so, and keep us in protestors for years to come. Besides, people are saying law professors are useless. Shouldn’t they have something to opine about?
COOPER: I give up.
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