What did we learn from the arguments at the United States Supreme Court yesterday on same sex marriage?  We thought we would check in with our favorite Supreme Court attorney for some insights.  The attorney has handled hundreds of appeals, including cases in the United States Supreme Courts, state Supreme Courts (including the Ohio Supreme Court), and Federal Circuit Courts of Appeals.

First, just as he did with the Obama care arguments, he warned us against reading too much into oral arguments.  “I think a lot of pundits and court observers looked really stupid when they declared Obamacare to be dead after oral arguments.  We know how THAT turned out.  Oral arguments are showy, but in my experience are far less important than the briefs.”

The important thing to remember about this case is that there are really TWO issues before the Supreme Court.  The first issue is a procedural issue called “standing.”  The second issue is whether the ban on same sex marriage violates the Constitution.

The standing question arose because the State of California is no longer defending Proposition 8 after the lower court ruled that it was unconstitutional.  So the sponsors of the Amendment took the appeal to the Supreme Court.   However, ordinary citizens generally don’t have “standing” to defend a state law.  Whether this case is unique enough for the Court to recognize an exception to this general rule is a tough question.

(Those who follow the JobsOhio litigation are familiar with this issue – this is what the Ohio Supreme Court will be dealing with in the suit filed by Progress Ohio.  Initial briefs in that case are due April 16, 2013.)

The attorney believes that a lot of the coverage about the standing issue is wrong.  “A lot of pundits suggested that the Supreme Court would use the standing issue to ‘punt’ on the difficult Constitutional question” he said.  (Politico: “Activists on both sides of the Supreme Court battle over California’s gay-marriage ban want dramatic action, but it looks like the justices might do something else — punt.”  Lawyers.com:   “. . . but the justices indicated that they would punt the issue instead.”)  Here is why he thought this analysis was wrong:

Look, I understand why everyone wants to discuss the Constitutional issues – this is the sexy part of the case.  The narrative that the Supreme Court may want to avoid getting involved in a contentious social issue is easy to write and understand.  But it just doesn’t fit reality for two reasons.  First, the Justices love this stuff – dealing with cutting edge social issues is why they became justices in the first place, and they didn’t have to take this case anyway.  Second, the narrative gives short shrift to the standing issue.  This is a real issue with significant long-term consequences for who can challenge and defend statutes.  If the Supreme Court throws out the case on standing, it won’t be a “punt,” it will be a principled decision. 

The attorney declined to make a prediction, but recommended that everyone should listen to the arguments, anyway.  (You can listen to the sound synched to the transcript here.)  In spite of the high emotions outside of the courtroom, everyone was respectful and thoughtful.  This is how the law should work.  He also heaped praise on Ted Olson, who argued in favor of same sex marriage.  “Olson put on an oral argument clinic.  He was confident, feisty, and respectful at the same time.  Every lawyer should listen to his argument and think about this the way young running backs think looking at film of Walter Payton, ‘I can learn something from this, but I will never be this good.”