Supreme Court And Proposition 8: A Few Thoughts

One of the more curious tidbits to arise out of yesterday’s oral arguments (pdf) over California’s Prop 8 was that that state’s constitution has been amended some 500 times. Those of us who don’t live there have always thought the place a little squirrely, but come on. That averages out to three amendments to its foundational document every year!

Donald Verrilli, esquire and Solicitor General of the land, was there as a sort of official buttinksy, and was fretting that if Prop 8 were upheld, there would be a “permanent ban” on same-sex marriage. This prompted Justice Alito to remind Verrrilli that “permanent” doesn’t mean what he thinks it means, at least in the Golden State.

The next matter, of significantly more import, was a comment by Theodore Olson, another esquire who sought the demolition of Prop 8. He said, “The California Supreme Court, like this Supreme Court, decides what the law is.” Somebody wise once said all flattery should be resisted. Justice Scalia, at least, did not resist, and agreed that the Court decides the law.

This is false, though Scalia is far from the only one to believe it (given the remainder of his questioning, it is more than possible Scalia was being sardonic and does not literally believe the Court makes law). Congress decides the law. The Court assumed the role of saying only whether those laws accord with the Constitution. The Court cannot make law, though courts often do. Chief Justice Roberts used this line of reasoning when upholding Obamacare, did he not?

Many want the Supreme Court to make the law as the 9th Circuit Court did, and discover a right to marriage for same-sex couples which was previously hidden and that only justices can see. Presumably they will wear special glasses. Incidentally, that’s “couples” and not “triples” or “quadruples”, etc. After all, if Bob & Ted can wed, why not Bob & Ted & Mark & John?

No, really. Why not? (It will be interesting to see who avoids this question. It is not an argument to say, “Nobody is asking for this”, because that is false and an evasion.)

Item number three: with no exception, everybody in the oral arguments assumed marriage is a right, is necessary, good, the foundation of society. All paid this institution stirring compliments. All assumed, or said, the state of matrimony just wonderful. All assumed it was two people. Why is that?

Number four, Chief Justice Roberts questioning Verrilli:

— I — it seems to me that your position that you are supporting is somewhat internally inconsistent. We see the argument made that there is no problem with extending marriage to same-sex couples because children raised by same-sex couples are doing just fine and there is no evidence that they are being harmed. And the other argument is Proposition 8 harms children by not allowing same-sex couples to marriage. Which is it?

General Verrilli stammered out “stabilizing effect”, but could offer nothing concrete. Many are talking of the “science” of kids raised under dual-same-sex-parent households, agreeing that there are many uncertainties. Mark Regnerus’s study wasn’t brought up, but Regnerus suggested other than the desired answer.

Anyway, it wouldn’t matter if kids statistically were the same under dual-same-sex-parent households as under real families, because the question of re-defining marriage is not a scientific but a moral question.

This was missed by Charles Cooper, esquire number three and the only fellow supporting Prop 8, who was asked by Justice Kagan:

…suppose a State said that, Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?

Kagan was thinking that old women have difficulty becoming pregnant, yet still these aged females wed. She was trying to get Cooper to admit that sometimes marriages, even though primarily designed for procreation, isn’t always. Cooper didn’t buy it and said the government would have to ask whether each of a couple was fertile on a marriage certificate.

But Cooper missed his chance to bring up natural law. It’s not that every instance of a real marriage produces issue, but that it is in the nature of one male and one female becoming one flesh to bring forth issue. That some marriage are against this nature does not invalidate the nature. (Bonus points for examples why. Hint: what does “men are taller than women” mean?)

Lastly, it’s anybody’s guess what the Court will do. Though I do note that Justice Sotomayor’s questions were not entirely “with the program.” I mean the progressive program. Perhaps that reflects her upbringing? We’ll see.


  1. Rich

    They interrupt each other a lot don’t they.

    I was much struck by: “But to come back to your precise question, I
    think, Justice Sotomayor, you’re probing into whether or
    not sexual orientation ought to be viewed as a
    quasi-suspect or suspect class, and our position is that
    it does not qualify under this Court’s standard and -­
    and traditional tests for identifying suspectedness.
    The — the class itself is — is quite amorphous. It
    defies consistent definition …”

    Sexual orientation defies consistent definition. Fancy that.

  2. First, your “hint”–It means little to me since I am the height of an average male and taller than many. Men are shorter than women in many cases. Men are taller than women in many cases. On average, the statement may be true and probably is. There are many exceptions. (We don’t argue that we should call the tallest people “men” or the shorter ones “women” which I am guessing is your point. An exception to procreation–which I also am–does not change the “marriage”. It’s just outside the tall part of the bell curve.)

    I was listening to a talk radio show with a caller who was all for same sex marriage but not for polygamy. The host kept asking why, and it boiled down to the speaker thought two parents were the right amount. He was then asked if single mothers/fathers were wrong and bad. Of course, no. In the end, it was evident that the individual was for SSM because he was. There was no reason whatsoever. The host aptly pointed out that removing the male/female aspect of marriage tends to remove all rules–there is no reason why multiples cannot marry, probably none why you can’t marry your sheep, etc. If you use the “we love who we love” argument and the “we were persecuted so obviously we have no choice in this or we would change” arguments, that applies to every single sexual orientation out there. And it will in time make the laws apply to all of these. Whether anyone believes it or not is not relevant. It will happen. (15% or less of the population has effected this change to SSM. Small numbers are actually a bonus in today’s liberal society.)

  3. Sander van der Wal


    What’s wrong with the “consenting (human) adult” rule, logically speaking? Multiples van marry, as long as they are all consenting adults, and one cannot marry a sheep, as a sheep is not a human adult, and also unable to give consent.

  4. Eric

    Dr. Briggs:

    In the case before the Supreme Court, neither party nor any of the justices are discussing polygamy, because they understand that it is not relevant to that case. The issue of polygamy has been addressed by bigamy laws at the federal level and in all 50 states; bigamy is not the issue before the court.

    I think your confusion lies in the fact that you assume that marriage is a group right (of exactly two opposite-sex people), not an individual right. All the parties before the Court, and the Court itself, assume marriage to be an individual right.

    The fundamental problem with marriage as a group-right is that the right is circumstantial and therefore not inalienable, because the right suddenly appears amongst a particular group of people, and then disappears when the exact conditions are not met. Alienable rights (such as voting) are weaker than inalienable rights (such as expression), and dependent on the whims of society and the state. A common legal term for those with a group-right is a “protected class”.

    If marriage is an individual right, extending from the inalienable natural right of individual autonomy, inalienable natural right of free association with other persons, and an individual’s inalienable right to reproduce, then society has a much harder time justifying infringing on the right.

    However, if marriage is an individual right, then same-sex marriage can be justified on the basis of exercising an individual’s rights of autonomy, association, and reproduction (keeping in mind that one does not need to exercise an inalienable right in order to have that right; thus one does not need to actually reproduce, or even be able to reproduce, in order to be married).

    Rights can be derived from natural law, derived from supernatural revelation, or created artificially by the state. The permitted exercise of rights can be constrained by society (usually via mechanisms of the state). The individual exercise of rights can also be practically constrained by a person’s specific circumstances.

    Thus, while a person may have a right to marriage, they could legitimately not be permitted by society to exercise that right in polygamous relationships, without infringing on the right itself. Furthermore, it is no infringement on their right to marriage if a person may not circumstantially happen to find a partner that is willing to marry them.


  5. bernie

    As I mentioned at Lucia Blackboard on another topic, I recommend to everyone Chapter 6 from Alice Through the Looking Glass.

    Alice considered a little. ‘I like birthday presents best,’ she said at last.

    ‘You don’t know what you’re talking about!’ cried Humpty Dumpty. ‘How many days are there in a year?’

    ‘Three hundred and sixty-five,’ said Alice.

    ‘And how many birthdays have you?’


    ‘And if you take one from three hundred and sixty-five, what remains?’

    ‘Three hundred and sixty-four, of course.’

    Humpty Dumpty looked doubtful. ‘I’d rather see that done on paper,’ he said.

    Alice couldn’t help smiling as she took out her memorandum-book, and worked the sum for him:


    Humpty Dumpty took the book, and looked at it carefully. ‘That seems to be done right—’ he began.

    ‘You’re holding it upside down!’ Alice interrupted.

    ‘To be sure I was!’ Humpty Dumpty said gaily, as she turned it round for him. ‘I thought it looked a little queer. As I was saying, that SEEMS to be done right—though I haven’t time to look it over thoroughly just now—and that shows that there are three hundred and sixty-four days when you might get un-birthday presents—’

    ‘Certainly,’ said Alice.

    ‘And only ONE for birthday presents, you know. There’s glory for you!’

    ‘I don’t know what you mean by “glory,”‘ Alice said.

    Humpty Dumpty smiled contemptuously. ‘Of course you don’t—till I tell you. I meant “there’s a nice knock-down argument for you!”‘

    ‘But “glory” doesn’t mean “a nice knock-down argument,”‘ Alice objected.

    ‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less.’

    ‘The question is,’ said Alice, ‘whether you CAN make words mean so many different things.’

    ‘The question is,’ said Humpty Dumpty, ‘which is to be master—that’s all.’

    This leaves open, however, who is Alice in this argument and who is Humpty Dumpty.

  6. Sander: Logically speaking, the rule is fine. As for the sheep not consenting, they do not consent to be sheared or eaten, but we do that. Shouldn’t be a problem with marriage.

    Eric: All 50 states had laws against homosexual marriage until they became “enlightened”. New enlightenment: Polygamy should be legal. Same process. Just start passing state laws and keep going.

  7. Matt


    Bigamy and Polygamy are two different things and are covered by different laws in most states (a few states don’t have laws criminalizing polygamy, though they don’t recognized the extra marriages as valid).

    The difference is that bigamy contains an element of fraud not present in polygamy

    With Bigamy all the wives have been deceived into believing that they are in a monogamous marriage when they are not.

    In a polygamous marriage all the wives know they are not in a monogamous marriage.

  8. Matt


    While polygamy is not before the court in the current case, if the court finds a right to SSM under the precedent set by Loving it would open the door to later challenges to the laws against polygamy. It would not do so for Bigamy due to the fraud element.

  9. Ray

    How fashions change. I remember when the lesbians were denouncing marriage as oppression and sex in marriage was the same as rape. I guess their thinking has evolved.

  10. @Ray:

    Precisely. What is really being established by all these antics is that whatever the most vocal element of a society believes emotionally will be thrust upon everyone else until something sticks.

  11. joeclark77

    “What’s wrong with the “consenting (human) adult” rule, logically speaking?”
    What’s wrong with it is that it’s an arbitrary “rule” made-up after the fact that you decided you were for “gay” “marriage”. No one derived this rule from natural law, or took it as an axiom and then “concluded” that it allowed for “gay” “marriage”. Instead you said to yourself, what “principle” can I pretend to believe in that would justify this atrocity but not justify other atrocities.

    The problem is: five years from now, when you are arguing in favor of pedophilia or bestiality, you’ll just make up a new arbitrary “principle” to claim as justification for the thing you want.

  12. Doug M

    I voted against Prop 8, yet I want to see it upheld.

    If we, the voters of the state of California, are going to vote to amend the state constitution, shouldn’t that amount to something? The logic on the decision to overturn Prop 8 was tortured. The judge said did not suggest that there was a fundamental or constitutional right to same sex marriage, but once the privilege had been granted, it could not be taken away.

    The arguments over standing bothers me as well. Only the Governor and the Attorney General have the standing to defend the law? If neither choses to do so the will of the people is overturned. This suggests that if the two are allied they could orchestrate to strike down any law in the state.

  13. Sylvain Allard

    “This is false, though Scalia is far from the only one to believe it … Congress decides the law. The Court assumed the role of saying only whether those laws accord with the Constitution. The Court cannot make law, though courts often do. Chief Justice Roberts used this line of reasoning when upholding Obamacare, did he not?”

    You and Olson are both wrong. The law is made by the legislative, in the US congress of each States and Washington for the federal laws (this part you got right). The law is then applied by the executive, from the White House to any civil servant who apply it on the ground.

    The finality of the court is not a question of moral, fairness, equality, or even justice. The finality of the court is to interpret the law, i.e. the written words of it. So the Court, at any level, doesn’t make any laws.


    Prop 8 will be stricken down.

    Although we have agreed on the term of civil union. You haven’t been able to prove or show any of your right that are infringed by gay marriage. The fight is for the State to recognize people as married so they can have the same benefit than other married couple.

    In no way are you forced to to consider that two people are married unless you are a civil servant who has to consider the eligibility to some state benefits.

    There will be at least 6 judges that will strike down Prop 8.

  14. Sylvain Allard


    The California DA was elected on the promisse to not defend Prop 8. The people who voted knew that and still voted for her, many voted for her because of it.

  15. Sylvain Allard


    Polygamy is very different. Having multiple marriages is different to not be able to get married.

    The advantage of marriage is for state benefit that people pay into. To give surviving spouse access to benefit that were cumulated by the couple.

    In multiple marriage who would receive this benefit? would it be split between spouses? In multiple marriages their is not link between the wifes if the man dies, while the unit continue if one of the wifes dies.

    There are still polygamist today who are married Under their Church and live Under the same roof, but their marriage are not regcognize outside their limited circle.

    They is no reason why SSM should lead to legalization of polygamy or marriages between several people.

  16. Matt

    Sylvain Allard,

    I don’t disagree the polygamy is different.

    That does nothing to change the fact that IF the court finds a fundamental right to SSM on the same grounds / reasoning by which they overturned interracial marriage bans in the Loving decision it would open the door for polygamists to challenge polygamy bans.

    If you listen to the oral arguments, at least one of the justices brought this issue up, so you can’t dismiss it as a possibility.

  17. Sylvain Allard


    You can bring an argument but it doesn’t mean that it stands. For example polygamy doesn’t require the other wifes to authorize the union. the argument doesn’t stand because their is no benefit to be have from the state in multiple marriages.

  18. Ken

    RE: ““The California Supreme Court, like this Supreme Court, decides what the law is.” … This is false, …. Congress decides the law.”

    THAT statement is sometimes false, therefore false.

    It depends on what “decides” means in the context used.

    The courts DO determine what a law means in a context that-should-be-obvious-to-every-adult-sense the courts “decide the law” by clarifying its meaning & how to interpret it. This can very often go against the intent of the legislators that drafted it.*

    Of course the courts don’t “decide” the law in the sense of drafting legislation; duh.

    This is an increasingly recurring tactic of Briggs–pick on some semantics that the vast majority of people wouldn’t notice as an issue because the context is so blatantly obvious, and do so in just such a way as to provoke an argument. Whatever the reason for this behavior, its not good.

    Scalia, by the way, has a very good book out on just how to read & interpret legal text that precludes the ability to get into such petty semantic squabbles that should never occur:

    * This point was driven home to me some years ago while working on a major program involving some significant environmental clean-up, the extent of which & cuplpabilities for were unclear depending on how certain laws were interpreted (a certain part of NEPA in particular). The interpretations coming in from various stakeholders varied substantially. Fed up with trying to get any consensus, I tracked down the very staffer in Congress responsible for the specific statutory clauses at issue & asked for an explanation. Her reply did not help: “We just write the laws, we don’t interpret them.”

    So, Justice Scalia is absolutely correct–the court(s) DO “decide” what a law really means, and if they do this correctly much of that will be based on what the law actually states vs. any asserted intended outcome. This is because the legislators who wrote a given law don’t necessarily have a clue.

    That is, one purpose of the courts is to sort out the legislative equivalents of the following because once they’ve shot their wad they don’t get a do-over:

    “I know that you believe you understand what you think I said, but I’m not sure you realize that what you heard is not what I meant.” – Robert McCloskey

  19. Sylvain Allard


    “(4) The best possible outcome for same-sex marriage advocates at this point is probably to have the Court dismiss the case on standing grounds, vacating the Ninth Circuit’s opinion, and leaving the District Court’s order in place. The Prop 8 proponents have never been able to show a particularized, personal injury from the recognition of same-sex marriage. And, despite what the California Supreme Court may have decided for state law purposes, ballot proponents do not stand fully in the shoes of the state in defending the law. If the people of California don’t like the fact that their Governor and Attorney General refuse to enforce their laws, they have a political remedy. Or they can adopt a procedure for having a stand-in appointed. But that’s an internal state governance problem; it doesn’t create Article III standing.”

    This is equal to striking down the amendment since there is already a judge in California that declared Prop 8 unconstitutionnal. I don’t see how the court will withold it.

  20. Ken

    It’s almost idiotic to try & discuss a very complicated SET OF INTERRELATED CASES as if it was one case addressing one simple thing. has informed commentary, by lawyers, about the numerous legal nuances of the Hollingsworth v Perry case; See: The LEGAL issues under debate & review in that case are:

    (1) Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman; and
    (2) whether petitioners have standing under Article III, § 2 of the Constitution in this case.


    The U.S. v Windsor case (, where the LEGAL issues there are:

    (1) Whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State;
    (2) whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and
    (3) whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

    That’s a lot of interrelated legal mumbo jumbo in play with the outcome of one case affecting the outcome of the other; pretendng to discuss it as if its anything straightforward or condensible to a soundbite doesn’t really make any sense.

  21. Matt

    Sylvain Allard,

    (4) is not the most likely outcome.

    “That means that we’ll most likely get a jurisdictional decision, with no clear win or loss for the ultimate cause, a vacated Ninth Circuit decision, and some large questions about the scope and effect of the District Court’s order. More litigation, and political struggle, to come.”

    The most likely outcome is a DIG (dismissed as improvidently granted) with no ruling on standing. This leaves the scope of the injunction issued by the district court uncertain.

    Because the CA State SC ruled that the Prop 8 supporters do have standing, with no clear ruling on standing by SCOTUS the prop 8 supporters basically get a do-over at the district court level by making the claim that the injunction only applies as to the specific plaintiffs that were before the district court in the original case.

  22. Matt

    The two cases are not quite as intertwined as you think, thought there is some overlap.

    SCOTUS could uphold prop 8 and overturn DOMA on federalism grounds.

    Overturning prop 8 and upholding DOMA would be fairly odd though.

  23. Sylvain Allard


    We will know in a few month who got it right and I’m rarely wrong in legal prediction.

  24. John

    There was both polygamy and SSM on the continent among many native tribes before the US formed. Look into the institution of what used to be referred to anthropologically as berdaches and now seems to be preferrentially termed “two-spirits.” There may or may not have been actual sexual role variation. What is clear is that there were individuals of one sex who preferrentially practiced the arts and crafts and also frequently dressed in a manor commonly assigned culturally to the opposite sex. This is very well documented and has also been observed archaeologically. What this says about the States and their laws is that Christian religious views were – not all that surprisingly – were enacted as law regardless of the constitutional guarantee of separation of church and state. Christian concepts of moral behaviour have been gradually squeezed into the laws of many cities, counties and states piece meal.

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