I dashed down from my hotel room at 6:10 a.m. to catch a predawn ride with colleagues over to the Supreme Court. Even at that hour, First Street was barricaded by the police in anticipation of rallies and protests to come later in the morning. We made our way around the courthouse, past the very long “public line” for members of the general public and took our places on the shorter, but still long, line for members of the Supreme Court bar.
Gloves, scarves and hats were everywhere – even wraparound blankets. Lots of hellos, too, with lawyers who had traveled in from across the country – just in our immediate area were colleagues from Minnesota, Texas, and California, as well as plenty of us from New York, and D.C., of course. We shared snacks and coffee and the sense of being in an historic place at an historic time as the sun rose and the Capitol building, just across from the nation’s high court, started to gleam.
Just at the point when my toes were about to snap off from the cold, the bar line started snaking toward the courthouse, slowly but surely, as lawyers and journalists passed through the metal detector. Courthouse personnel ushered us back on to the bar line where several computers made sure we were actually admitted to the Supreme Court bar and not just opting for the shorter line. One friend who I saw on line had snapped a photo of her Supreme Court bar certificate just in case there was a glitch. Though I hadn’t thought to do that, I did have a dream the night before that there were 850 lawyers waiting to get in to the courtroom and I was number 851. Oh, and then there were many – myself included – who had woken up semi-regularly the night before just to make sure we didn’t oversleep.
Huge sigh of relief when a courthouse staff member handed me a ticket and told me that we would make it inside the courtroom. The feeling was electric. As someone in the press seats said, the entire gay bar seemed to be there. While maybe that was a bit of an overstatement, there were plenty of us. It reminded me of the courtroom’s feeling on the day Lawrence v. Texas was argued, but also of how long we had come since that argument, which was exactly ten years earlier to the day. At that time, it was something unique to have that many openly LGBT members of the Supreme Court bar in one place. This time was no surprise – just a recognition that the world has truly become a different place.
A buzzer sounded and the clerk called the Court into session. Before the Perry argument got started, there was some business to conduct. Justice Scalia announced an opinion in a case involving a dog sniffing around someone’s front door and finding marijuana. It wasn’t lost on me, or probably many others, the justice’s easy presumption that the home is a place of privacy, including from drug-sniffing dogs, when in 1986 the Court had found, in its infamous decision upholding Georgia’s sodomy law, that Michael Hardwick did not have a privacy right to have consensual oral sex with another man in his own bedroom.
Justice Scalia finished announcing the decision, a group of young lawyers were admitted to the Supreme Court bar by a special swearing-in ceremony, and it was time. Chief Justice Roberts called Charles Cooper, lawyer for Proposition 8’s sponsors, and the argument began.
Mr. Cooper started off by trying to frame marriage as a tradition that would be threatened by the inclusion of same-sex couples. He got out almost a sentence when the Chief Justice interrupted and said, “Mr. Cooper, we have jurisdictional and merits issues here. Maybe it’d be best if you could begin with the standing issue.” From there, it was a quick moment before the justices jumped in, pressing Mr. Cooper as to why Proposition 8’s sponsors, who are private citizens without the accountability of government officials, should be able to stand in for the government. (Full disclosure – I filed a brief with Professor Henry Monaghan arguing that the sponsors lack standing and have written about the issue elsewhere as well.)
While detailing the arguments is tempting, I will refer you to the Court’s transcript and just say, here, that by my count, at least five justices expressed serious concerns about whether private individuals can invoke the federal courts’ authority to decide cases where those individuals have not suffered a personal injury. Here, since Prop 8’s sponsors are not seeking to marry same-sex partners, they have no claim that they’ve suffered their own injury by virtue of the measure’s passage.
Now, much of the media coverage has suggested that the justices were concerned about being asked to do too much (require 50 states to recognize same-sex couples marriages) too soon (when 9 states and the District of Columbia recognize those marriages). Just briefly, for now, I disagree with that assessment. My sense is that many of the justices are concerned about the harms to gay couples and to the children of gay couples that flow from states denying marriage equality. Take for example this question from Justice Kennedy posed to the lawyer defending Proposition 8:
There is an immediate legal injury or . . . what could be a legal injury, and that’s the voice of these children. There are some 40,000 children in California … that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?
At the same time, though, there is a serious problem with the sponsors of Proposition 8 putting that question before the Court because, again, they are not personally injured by the exclusion of same-sex couples from marriage. If the Court is concerned about standing, as it seems to be, it has (at least) two options. One is to “DIG” the case – meaning to dismiss the case because review was “improvidently granted.” This would mean that the Ninth Circuit’s decision, which finds Proposition 8 to be unconstitutional, stays in place.Another, which I think is the better outcome, is not to dismiss but instead to write a full opinion holding that initiative sponsors cannot invoke the authority of the federal courts just because they feel passionately about a measure they have sponsored. This would mean that the federal district court decision, which also found that Prop 8 violated the U.S. Constitution, is the one that holds.This latter outcome – with a decision on standing that leaves the district court opinion in place – is, I think, truest to the Court’s standing jurisprudence. It gives the breathing room that many justices seemed to want to allow for this most basic issue of equality to percolate even further among the public. Ultimately, though, the Constitution demands equality. Though this is not likely the case to reach that point, equality looms there, on the horizon, and we seem to be well along the way