Q: Why is there a picture of a chicken on this post about gun violence legislation?
The audio and transcript of the Supreme Court arguments in Hollingsworth v. Perry, the Proposition 8 marriage equality case, are now available.
Without video, the best way to review these is to read and listen to them at the same time. Otherwise, you may not know which Justice is talking—though some of them have such distinctive voices, styles or insights that they are instantly recognizable. Hint: Justice Clarence Thomas is the one who is not talking; he never does.
The news channels deal with the lack of video (not permitted) by playing the audio, identifying the speaker on screen, and showing an artist’s sketch. You can do this yourself, creatively if you want. You might use a photo instead of a sketch, or you can just select a random picture of another distinguished Justice or lawyer, present or past.
The odds of correctly predicting outcomes in difficult Supreme Court cases like this are better than winning the Powerball lottery or picking all the NCAA brackets right, but not much. So here are some first impressions.
Standing
The path of this case is complicated. The California Supreme Court enabled same-sex marriage and for a few months couples did marry. Almost immediately, a group sponsored an initiative to reverse that decision by banning same-sex marriage in the state. The initiative passed, but the U.S. Ninth Circuit Court of Appeals declared the ban on same-sex marriage unconstitutional, thus allowing same-sex marriage to proceed. The sponsor of the initiative appealed and the Supreme Court agreed to hear the case.
That is where the standing issue comes in. The State of California refused to appeal the overturning of the initiative. This left the initiative sponsor as the closest thing to an interested party for purposes of appeal.
But maybe not legally close enough. The Supreme Court did agree to hear the case, but now appears to wonder whether the proponents of the initiative have legal standing to have brought the appeal in the first place. The Court is free at this point to reconsider the question and rule that their initial agreement to hear the case was “improvidently granted.”
The Justices spent a substantial amount of time during arguments on this standing question. If standing is denied, the Court won’t be deciding any of the other issues. The appeal is over, the decision of the Ninth Circuit will stand, and same-sex marriage will once again be the law of California. There is some discussion that for the moment, the Court would like to narrow whatever they have to say about same-sex marriage to California, and let the legal questions mature. If they don’t have to say anything, that narrowing takes place automatically.
How likely is that? If this was the only same-sex marriage case before the Court this term, it would be an easier route for them to take. It would allow more cases to move up the appeal chain, more Courts of Appeal to be heard from.
But it isn’t the only case like it this term, or even this week. Today the Court will consider the constitutionality of the Defense of Marriage Act (DOMA), passed by Congress and signed by Bill Clinton in 1996. DOMA prohibits the federal government from recognizing same-sex marriage, which among other things means that same-sex spouses enjoy no federal benefits. (This has proved to be an embarrassment for Democrats. Scores of Senators and Representatives submitted a brief in which they apologized for being wrong, and Bill Clinton has done the same thing in a recent op-ed piece.)
Procreation
Charles Cooper is the attorney representing the proponents of Proposition 8. Good lawyers get stuck with bad positions in tough cases, and this is that.
The primary argument for the constitutionality of a ban on same-sex marriage—aside from moral arguments, which are not legal ones—is that the tradition and essence and supreme societal value of marriage is procreation. You get married, above all, to have babies; if you can’t have babies, your right to marry is questionable or non-existent. Same-sex couples have no possibility of having children, at least the old-fashioned way (adoption being one of those modern, new-fangled techniques, like in vitro fertilization). Ergo, they have no right to marry.
The above is not hyperbole or sarcasm. For endless minutes, punctuated by occasional laughter, this is the argument that Cooper made, and that various Justices endorsed or, more frequently, questioned.
This part of the arguments has been widely covered, so there are no excerpts here. Listen and read for yourself. The discussion about the fertility of 55-year-old couples and of Strom Thurmond are worth the price of admission.
“The Experiment”
There was discussion of same-sex marriage being some sort of “experiment.” We supposedly have to wait for “scientific evidence” and “data” to determine how well it works.
The discussion of procreation was sad but silly, leavened by laughter. On this point, it is hard to laugh.
For the record, if marriage of any kind is an experiment, the results are in. Sometimes it goes blissfully right, sometimes it goes horribly wrong. Sometimes the children—who arrive in all sorts of ways and are raised in all sorts of permutations—turn out well, and once in a while they don’t. Some people like to go wild with the experiment, trying serial marriage and divorce (and marriage and divorce and marriage and divorce). It’s not an experiment for any of these couples. It’s just marriage. It’s life. It’s love. It’s being human connected.
Justice Antonin Scalia
[This space intentionally left blank.]

Today begins two days (March 26 and 27) of arguments before the Supreme Court on two related cases about marriage equality. One concerns Proposition 8, California’s voter-passed initiative to ban same-sex marriage.
The question presented on appeal in that case is this:
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.
The other case concerns the Defense of Marriage Act (DOMA), which prevents extension of various federal benefits to same-sex couples.
The question presented on appeal in that case is this:
Section 3 of the Defense of Marriage Act (DOMA) defines the term “marriage” for all purposes under federal law, including the provision of federal benefits, as “only a legal union between one man and one woman as husband and wife.” It similarly defines the term “spouse” as “a person of the opposite sex who is a husband or a wife.”
Whether Section 3 of 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
It is usual in important cases to have non-parties submit position papers to the Court, known as amicus curiae (friend of the court) briefs. The more significant or contested the controversy, the greater the number of individuals and organizations who want to offer their views—legal, social and otherwise—to help the Court decide. These briefs may be of various value to the Court, but they are all offered in friendship. These friends are often giving a bit of unsolicited advice, as friends do.
Whatever their value, these briefs are fascinating reading. Not unexpectedly, the number of amicus briefs in these cases is extraordinary: 96 in the Proposition 8 case, 80 in the DOMA case.
We will not be able to watch these historic arguments live, or even listen to them live. For reasons surpassing all understanding (something about tradition or about dignity or about lawyers—or even Justices—showboating for the media), cameras are not permitted in the U.S. Supreme Court. With all due respect—lawyers are bound to say that, since the First Amendment will not protect us from punishment for bringing disrepute on our judicial biggers and betters—there are probably plenty of calendars in and around the Supreme Court to indicate the year and century (2013, 21st).
Even if we are stuck only getting reports from the front line, there is something to do in the meantime. In fact, even after we do get the transcripts and audio of the arguments (remember, no cameras, ever), we can read all of the briefs in the case. There are the briefs from the parties to the cases and there are the 176 briefs from helpful friends. These friends include, among many of the prominent, famous and infamous, 50 U.S. Senators and 172 U.S. House members.
You can find the Proposition 8 briefs online
Dennis Hollingsworth, et al., Petitioners v. Kristin M. Perry, et al.
You can find the DOMA briefs online
In case you have decided not to dip a toe into the amicus waters, following is a list of all the briefs. But please do give it a try. Some of it will be a tough legal slog for non-lawyers, so you might skip those parts. But some will be essential historical, political, social and cultural analysis and commentary. Whether or not you agree with all these “friends”, you will come away with an informed view of all the positions, from the most solid to the wildest.
Browse the list of briefs below. It might be educational and fun. And if you do read a few of them, you might have even more fun. Maybe even legal fun. Yes, there is such a thing. Just ask the Justices.
Dennis Hollingsworth, et al., Petitioners v. Kristin M. Perry, et al. (Proposition 8)
Merit Briefs
Amicus Briefs
United States v. Edith Schlain Windsor, in Her Capacity as Executor of the Estate of Thea Clara Spyer, et al. (DOMA)
Merit Briefs
Amicus Briefs

Above is one of the photos taken by Dorothea Lange for the Farm Services Administration during the Depression. Shot in 1937, it is captioned “The cotton sharecropper’s unit is one mule and the land he can cultivate with a one-horse plow. Greene County, Georgia.”
The plow is a thing that made America what it is. Whether pushed by hand, or pulled by an animal or an engine, it embodies the hard work that helps bring food from the earth to feed a family or a nation, especially during hard times.
The gun is also a thing that made America what it is. Unlike the plow, about which there is little controversy, guns have played an equivocal role, sometimes for good, sometimes not.
There is no constitutional amendment about plows.
There is no biblical passage about guns.
There is, as is often pointed out, a very famous biblical verse about plows. And about pruning hooks. And about their value relative to swords and spears.
Isaiah seems certain that plows and pruning hooks are good. He seems less enthusiastic about the downside of swords, spears and, presumably, guns.
Nothing absolute or definitive, no unconditional endorsement of pacifism or non-violence, unless maybe you are someone who takes the Bible seriously or even literally. Just a little something to think about.
They will beat their swords into plowshares
and their spears into pruning hooks.
Nation will not take up sword against nation,
nor will they train for war anymore.
Isaiah 2:4

Early in the Iraq War, President Bush tried to block taking pictures of the arrival of the coffins of fallen soldiers at Dover Air Force Base. The proposal was couched as a gesture of respect to the families, but the real point was to shield citizens from the ultimate cost of war.
There are different opinions on the impact of viewing carnage, fictional and real. Does constant exposure immunize us from taking violence seriously? Would we pursue wars so readily, or at least try to better distinguish the necessary from the chosen, if we were bombarded by those images? If we saw footage of the early days of the camps in real time, would we have allowed the Holocaust to proceed?
The images of the children killed at Sandy Hook School in Newtown are blocked from us. This choice is almost beyond argument. We have heard the reaction of those who did witness the aftermath, and even those who have participated in war said that scene was worse. We are protecting the dignity of those lives unlived and respecting the immeasurable grief of the families. Our imaginations are already enough to rend our hearts.
And so instead we have pictures of those children as they are remembered, beautiful angels, joy and potential, and we have the testimony and imploring of their parents. But somehow, this doesn’t seem to be quite enough to stop abstract arguments about the essential value of the Second Amendment, how it must continue unconditioned even by sensible restrictions that meet moral, practical and constitutional muster. First they come for my AR-15, this line goes, and next the deer and the police will be hunting me.
There is a way to end this argument, though for good reasons we will not do it. If we ever get to see the killing field at Sandy Hook, there will be little more talk of a free trade in assault weapons and big ammunition clips. There may be talk, but it will be silenced by a new and more powerful outrage. The NRA might try to keep repeating a mantra that is already falling on more deaf ears, and some of their political operatives will follow. But the vast majority of Americans will move from just saying the right thing to a pollster to demanding that the right thing be done. Now.
If we could, as we won’t, see the children.

In the aftermath of the election, a certain joyous complacency has set in regarding Citizens United and the impact of Big Money on the electoral process. A derisive attitude of “epic fail” has attached to Sheldon Adelson, Karl Rove and all the others who seemingly wasted their billions (or other people’s billions) on influencing the results. Some have wondered out loud about how much real good those billions would have done for a country and world in need.
In fact, the money was merely mismanaged, channeled into outdated and ineffective strategies, and thereby wasted. But that will not last. There are plenty of talented operatives and strategists out there, even now working on better ways to address electoral problems using modern means. Yes, they are outnumbered by old school consultants relying on some combination of charm, reputation and useless technique, but like the blind squirrels, even Big Money will find the acorns sometimes.
And when the billionaires do find the operatives working on the cutting edge of 21st century electoral influence, what many feared would happen in the 2012 election—but didn’t—will eventually happen. Elections will be bought, even on behalf of those candidates who appear to some as unqualified and even clownish.
It’s time to stop laughing at Karl Rove’s misfortunes and start doubling up on the efforts to neutralize the impact of Citizens United. Proposals are out there, ranging from enhanced disclosure to a constitutional amendment. Whatever the approach, pursue it now. It’s the only way to avoid the Wednesday morning in November we didn’t have, the one where we wake up shaking our heads and asking: How in the world did that happen?

The refrain of this Presidential campaign, in the face of the breathtakingly nonsensical and mendacious, should be “How do they get away with this stuff?”
Consider these two related items.
1. In the view of most political scientists and pundits, the single most significant impact of being elected President of the United States is the power to appoint Supreme Court justices.
2. A recent FindLaw.com survey found that only 34 percent of Americans can name any member of the Supreme Court. Only 1 percent could name the entire Court. The percentage who can name any particular justice:
John Roberts – 20%
Antonin Scalia – 16%
Clarence Thomas – 16%
Ruth Bader Ginsburg – 13%
Sonia Sotomayor – 13%
Anthony Kennedy – 10%
Samuel Alito – 5%
Elena Kagan – 4%
Presumably, a number of the people paying attention to the campaign and voting for President are the same people who don’t know the name of a single Supreme Court justice.
That’s how.