Observations on oral argument in the California marriage case:

I've now listened to the oral argument in the California marriage case — all 3 hrs, 38 minutes of it -- and have a few impressions.

First, the most likely result is that the gay-marriage litigants will lose 4-3 or possibly 5-2. I defer to those more expert about that court, but based on the oral argument I would count Justices Baxter, Chin, Corrigan, and Werdegar as likely votes against the petitioners. These justices were much more hostile to the petitioners' arguments than to the state's. I would count Chief Justice George and Justice Kennard as likely votes for the petitioners. They were more hostile to the state's arguments and often intervened in helpful ways for the petitioners. I'm uncertain about Justice Moreno, though he seemed slightly more skeptical toward the petitioners.

This prediction assumes both that (1) the dominant tone and substance of the comments from an individual justice actually reflect his or her views about the case and that (2) the justice will not change his or her mind post-argument.

Even if the court doesn't order the immediate recognition of same-sex marriages in the state, however, the opinion it writes will matter for future litigation. It could issue an opinion in which it signals that it may revisit the issue if domestic partnerships do not, in practice, give substantive equality to same-sex couples. There is some evidence, noted in the oral argument today, that civil unions in New Jersey have fallen short in several ways.

Second, the state is defending a small sliver of territory in this case, which weakens the force of its arguments overall. California has already created domestic partnerships for gay couples that grant them all of the rights and benefits of marriage under state law. All that remains to do, under state law, is to call these relationships "marriages" instead of "domestic partnerships." That's ultimately what these six consolidated marriage cases are about.

The state cannot and does not justify the exclusion of gay couples from marriage based on things like promoting procreation and the best interests of children. AS a matter of state public policy, it has already surrendered much substantive ground about the differences between gay and straight couples. The state's counsel was left to argue that withholding the title of "marriage" is justified by the state's unadorned desire to "preserve the common and traditional definition of marriage."

Third, even the justices that seemed sympathetic to the state were skeptical about child-raising rationales, primarily because the public policy of the state is to make no distinction between same-sex and opposite-sex couples in child-rearing. Neither promoting procreation, nor its cousin, promoting responsible procreation, played a significant role. Procreation wasn't even mentioned until more than three hours had passed.

Fourth, the most impressive performance among the eight lawyers (yes, there were four on each side) came from Therese Stewart, representing San Francisco. She was sharp, articulate, succinct, incredibly knowledgeable, and calmly passionate. If same-sex marriage litigants are hobbled by weak constitutional arguments and now by the weight of much adverse precedent, they have repeatedly enjoyed an advantage in quality of advocacy.

By contrast, the main counsel for the state and the governor, both very fine lawyers, seemed unenthusiastic about their case. The governor's counsel began his presentation by asking whether the justices had any questions.

Fifth, there were a couple of mildly entertaining moments. Shannon Minter, for the petitioners, began his rebuttal by borrowing from Shakespeare: "Same-sex couples have come here today to praise marriage, not to bury it." That drew competing Shakespeare quotes from the justices along the lines of, "What's in a name?" and "A rose by any other name would smell as sweet." (Apparent references to the question of whether the name "marriage" makes any substantive legal difference.) Ok, I don't recommend a listen for the comedic quality of the arguments.

Finally, if gay-marriage litigants do lose the case, the loss may turn out to be a blessing in disguise for the gay-marriage movement as a whole. On the one hand, a pro-SSM ruling from the California high court would lead to a state-wide voter initiative to amend the state constitution to ban not only gay marriage but legislatively created civil unions as well. Nobody knows how that vote would turn out, but I would not be confident of a victory for gay marriage. That has always been a serious risk of this California litigation.

Beyond California, a ruling for the SSM litigants would increase the perceived risk to legislatures in other states that if they extend domestic partnerships or civil unions to gay couples courts will use that progress as a reason to force the states to go all the way to marriage. This might make them less likely to experiment with statuses that grants some rights and protections to gay families.

On the other hand, a ruling that leaves the issue to the state legislature (which has twice voted to recognize gay marriage) and the governor (who has twice vetoed gay-marriage legislation, deferring the issue to this litigation) will mean that this issue will be resolved democratically. Either this governor or a future one will eventually sign a gay-marriage bill which, as I understand California law, means that the voters of the state will have another go at the issue. (In 2000, they voted to define marriage as the union of a man and a woman in state statute.) In that event, the issue will be presented to them in the best possible light: with the state legislature and the state governor solidly behind the change — not simply the sympathy the state's high court.

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  1. Observations on oral argument in the California marriage case:
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