At the U.S. Supreme Court on Tuesday, the moment had finally arrived. After four years of litigation in the lower courts, the Supreme Court was hearing a challenge to California's ban on same-sex marriage. But minutes into oral arguments, it became clear that the justices may not give either side the clear-cut victory it wants.
All eyes were on Justice Anthony Kennedy, widely viewed as a swing vote and very possibly the deciding vote in the case, but he seemed reticent about the court dealing with the California case at all. "I just wonder if the case was properly granted," he mused.
The showdown at the same-sex-marriage corral seemed to get derailed from the get-go by the procedural issues involved in the case — a legal test of the ballot initiative banning same-sex marriage that was passed by the California voters in 2008.
Charles Cooper, the lawyer defending the California ban on same-sex marriage, got just 34 words out of his mouth before he was interrupted by Chief Justice John Roberts, who instructed him to address the boring, but essential procedural question: Should the case be in the Supreme Court at all?
The state of California has refused to defend the ban, known as Proposition 8. So, with the state declining to defend the law, did the sponsors of the ballot initiative have legal standing to substitute for state officials in defending the law?
Justice Ruth Bader Ginsburg asked Cooper, "Have we ever granted standing to proponents of ballot initiatives?"
No, he conceded, but in this case the California Supreme Court ruled that the initiative sponsors do have legal standing under state law.
To Proposition Proponents, A Question For The Public
The justices went back and forth on the issue for 15 minutes before Cooper was allowed to move on to his central argument. Public opinion and knowledge about same-sex marriage is "changing rapidly," he said.
The question the court has to answer, he said, "is whether the Constitution puts a stop to that ongoing democratic debate and answers this question for all 50 states."
Pressed by Justice Sonia Sotomayor, Cooper conceded that it would be unconstitutional to discriminate against gays and lesbians on matters such as employment. If that is true, she asked, then why can homosexuals be singled out for different treatment in their ability to marry?
"At bottom," Cooper said, "same-sex couples and opposite-sex couples are simply not similarly situated," and it is reasonable to believe that over time, the institution of marriage itself would be harmed if marriage were redefined as a "genderless institution."
Justice Elena Kagan followed up, asking what exactly is the "harm to the institution of marriage or to opposite-sex couples? How does this cause and effect work?"
That's not the right question to ask, Cooper responded. "The correct question is whether or not redefining marriage to include same-sex couples would advance the interests of marriage?"
Justice Antonin Scalia chimed in to underline the point. "They're arguing for a nationwide rule, which applies to states other than California, that every state must allow marriage by same-sex couples," he said. Some states may believe same-sex marriage somehow harms traditional marriage, "but it is certainly true that there's no scientific answer to that question at this point in time."
Kennedy agreed that the sociological evidence about gay marriage is new — only "five years of information" — and it has to be weighed against "2,000 years of history." On the other hand, "there are some 40,000 children in California," he said, "that 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, don't you think?"
Cooper, however, replied that if the court rejects the traditional procreative purpose of marriage, the focus of marriage will shift "away from the raising of children and to the emotional needs of adults."
In light of that, asked Kagan, would it be constitutional to bar marriage licenses for those over 55? For several minutes, Cooper tried to dodge the question, contending that one partner in such a marriage is likely to remain fertile.
Kagan wasn't going to let him get away with it.
"I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage," she said, as the courtroom broke into a loud burst of laughter.
A Label 'That Means Something'
Second up to the lectern was Theodore Olson, representing those challenging the California same-sex-marriage ban.
He too was instructed to address the procedural question — does this case belong in the Supreme Court at all? He contended that the sponsors of Proposition 8 have no legal standing to appeal an adverse ruling in the lower courts.
Kennedy and Justice Samuel Alito were skeptical. "The whole point of the initiative process was to allow the people to circumvent public officials about whom they were suspicious," said Alito, and if the sponsors of Proposition 8 cannot defend the law, the citizens of California are effectively powerless to override public officials when public officials refuse to defend the state's laws.
After 10 minutes of debate on the standing question, Olson finally got to make his case that Proposition 8 denies gay couples the equal protection of the law.
Proposition 8 "walls off the institution of marriage," which society does not have a right to do, Olson argued. The right to marry, he said is an individual right, which "this court again and again and again has said ... is a personal right. It's a part of the right of privacy, association, liberty, and the pursuit of happiness."
Roberts, however, disputed the notion that Proposition 8 is a law that excludes same-sex couples, when historically, the definition of marriage never included same-sex couples.
Scalia similarly hammered Olson on the historical point, repeatedly demanding to know when same-sex marriage became constitutional.
"It was constitutional when we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control," said Olson.
"I see. When did that happen? When did that happen?" inquired Scalia.
"There's no specific date in time. This is an evolutionary cycle," Olson replied.
An exasperated Scalia suggested that unless Olson could give him a hard and firm answer, it would be impossible for him to decide the question.
Alito moved on to another point, noting that California gives gay couples all the same legal rights as married straight couples. That prompted Roberts to remark: "So it's just about the label in this case."
But Olson replied that the label marriage means something special. "It is like you were to say you can vote, you can travel, but you may not be a citizen. There are certain labels in this country that are very, very critical."
' Newer Than Cellphones And The Internet'
But Kennedy, whose vote may determine the fate of Proposition 8, repeatedly seemed to shy away from making such a broad ruling. These are "uncharted waters," he observed, wondering if the court might have jumped the gun in agreeing to hear the case.
Scalia, however, dismissed that notion. "It's too late for that," he remarked. "We have crossed that river."
The Obama administration's chief appellate advocate, Donald Verrilli, made a brief appearance, siding with those challenging Proposition 8 but contending that at least for now, the Supreme Court does not have to make a broad ruling that would affect the majority of states that ban same-sex marriage.
Verrilli's argument was met with skepticism from both the court's liberals and conservatives. The conservatives wondered why the court should intervene at all with state judgments on the issue. Said Alito: "You want us to step in and render a decision" on the effects of same sex marriage, "which is newer than cellphones or the Internet?"
"We do not have the ability to see the future," he added.
As for the liberals, they asked why, if California's ban is unconstitutional, other state' bans could stay in place.
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