On Tuesday, six justices engaged in an oral argument on the constitutionality of Proposition 8 – which amended the state Constitution to define marriage as between a man and a woman. They questioned whether the case was properly before the court and indicated that they might vote to dismiss it.
According to New York Times, the justices’ comments showed a court torn over whether this was the right time and right case for a decision on a fast-moving social issue. Justice Sonia Sotomayor seemed to share that concern. “If the issue is letting the state experiment and letting the society have more time to figure out its decision,” she said, “why is taking a case now the answer?”
In 2008, California State Supreme Court invalidated Proposition 22, which had passed in 2000 and provided that “only marriage between a man and woman is valid or recognized in California.” Yet, California voters passed Proposition 8, a voters’ initiated ballot proposition, in November 2008 state elections. The State Constitution put Prop. 8 into immediate effect the day after the election, barring any further same-sex marriages, but did not affect domestic partnerships in California, nor same-sex marriages performed before November 5, 2008.
Then, a gay federal judge Vaughn Walker overturned Prop. 8 in August 2010. He ruled that it violated both the Due Process and Equal Protection clauses of the United States Constitution. Then, a Ninth Circuit Court of Appeals panel affirmed Walker’s decision declaring Prop 8 ban on same-sex marriage to be unconstitutional on Feb. 7, 2012. Still, the panel continued a stay on the ruling, barring any marriages from taking place pending further appeals. The proposition’s proponents filed a petition for certiorari with the U.S. Supreme Court, requesting that the Court review the case, on July 30, 2012. On December 7, 2012, the Supreme Court granted the proponent’s petition for certiorari. The court is expected to issue its ruling in Hollingsworth v. Perry by late June 2013.
Justices who appeared sympathetic to same-sex marriage indicated that there was no principled way to issue a ruling that could apply only in California or only in the nine states that have civil union or domestic partnership laws but without the word “marriage,” according to New York Times. The court appears to have an all-or-nothing choice: either a ruling that would require same-sex marriage in all 50 states or one that would say that all states may do as they wish.
The justices asked Charles J. Cooper, a lawyer for opponents of same-sex marriage, whether there was any good reason to exclude same-sex couples from the institution.
According to New York Times, Cooper said, “It is an agonizingly difficult, for many people, political question. We would submit to you that the question is properly decided by the people themselves.”
Justice Elena Kagan questioned, “Mr. Cooper, could I just understand your argument?” she asked, according to LA Times. “It seems as though your principle argument is that same-sex and opposite-sex couples are not similarly situation because opposite-sex couples can procreate, same-sex couples cannot, and the State’s principle interest in marriage is in regulating procreation. Is that basically correct?”
Cooper replied, “That’s the essential thrust of position, yes.”
Kagan responded, “In other words, you’re saying, well, if we allow same-sex couples to marry, it doesn’t serve the State’s interest. But do you go further and say that it harms any State interest?”
Cooper replied that he did.
“What harm [do] you see happening and when and how?” Kagan asked. “How does this cause-and-effect work?”
Cooper responded, “It will refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, or adult couples.” The key to marriage, he said, is procreation.
Cooper’s response did not seem to satisfy several of the judged, according to New York Times.
Justice Stephen G. Breyer asked Cooper about sterile opposite-sex couples. “There are lots of people who get married who can’t have children,” he said.
Justice Kagan asked whether the government could ban a man and a woman who are over 55 from marrying because they would not be able to have children. Cooper said the court could not constitutionally ban such marriages, but he said that was no reason to alter traditional definitions.
The lawyers confronted the liberals with a political problem, too. Did they really want to impose same-sex marriage on states that clearly didn’t yet want it? Could they produce a more limited, but still pro-marriage equality, ruling?
According to New York Times, Justice Kennedy said emphatically, “There are some 40,000 children in California, who 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.” Cooper said that no study exists to demonstrate whether marriage confers benefits on children that domestic partnership laws do not.
But Kennedy said he was uncertain about the consequences for society for allowing same-sex marriage. “We have five years of information to weigh against 2,000 years of history or more,” he said.
Justice Samuel A. Alito Jr. echoed the thought.
“You want us to step in and render a decision based on an assessment of the effects of the institution, which is newer than cellphones or the Internet?” he said, according to New York Times.
Justice Roberts said history was on the side of traditional marriage. “The institution developed,” he said, “to serve purposes that, by their nature, didn’t include homosexual couples.”
Theodore B. Olson, representing two couples challenging Proposition 8, said it was pernicious. “It walls off gays and lesbians from marriage, the most important relation in life,” he said, “thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal and not O.K.”
Justice Scalia asked when it became unconstitutional to deny same-sex couples the ability to marry. His suggestion was that the constitutional text at the time of its adoption could not have been understood to allow such a thing. He and Olson went back and forth on the question, sometimes talking over each other, but Olson did not answer.
When Olson said “the label ‘marriage’ means something,” Chief Justice Roberts agreed — to a point.
“If you tell a child that somebody has to be their friend, I suppose you can force the child to say, ‘This is my friend.’ But it changes the definition of what it means to be a friend.”
The Supreme Court will hear a second same-sex marriage case on Wednesday, United States v. Windsor, No. 12-307, concerning the federal Defense of Marriage Act. The court is quite likely to reach the merits of that case, which concerns a part of the law that bans the federal government from providing benefits to gay couples married in states that allow such unions.
Cooper said that while everyone agrees that redefining marriage will have “real-world consequences,” no one can guess what those might be. “I think it better for California to hit the pause button and await additional information from the jurisdiction where this experiment is still maturing,” i.e., where gay marriage is legal.
According to New York Times, when Mr. Cooper rose to give his rebuttal at the end of the session, Justice Kennedy asked the first question. “You might address,” the justice said, “why you think we should take and decide this case.”
In other words, perhaps the Justices should just punt on Proposition 8, leave the matter where it stood, and concentrate on the Defense of Marriage Act case.