On Prop. 8, Supreme Court gives few hints of sweeping gay marriage ruling
Supreme Court arguments on Prop. 8 were at times pointed, but the justices often seemed tentative, giving the impression that their decision in the gay marriage case might not be broad.
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Scalia said the answer to that question was easy. It became unconstitutional when the equal protection clause was adopted. “But don’t give me a question to my question,” Scalia complained. The courtroom erupted in laughter.Skip to next paragraph
In Pictures Same sex marriage
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Scalia pressed his query. “Has it always been unconstitutional?”
Olson: “When the California Supreme Court faced the decision.”
Scalia said that was when the California court acted, not when it became unconstitutional. “When did it become unconstitutional to prohibit gays from marrying?”
Olson: “They did not assign a date to it.”
Scalia said he was not asking about the California Supreme Court. “I’m talking about your argument. You say it is now unconstitutional. Was it always unconstitutional?”
Olson: “It was unconstitutional when we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control.”
Scalia: “When did that happen?”
Olson: “There’s no specific date in time. This is an evolutionary cycle.”
Scalia: “How am I supposed to know how to decide a case, then.”
Olson: “I submit, you’ve never required that before.”
Scalia: “Fifty years ago, it was okay?”
Olson: “I can’t answer that question, and I don’t think this court has ever phrased the question in that way.”
Scalia: “I can’t either. That’s the problem. That’s exactly the problem.”
Press pause or delete?
Justice Samuel Alito asked Solicitor General Donald Verrilli why the US shouldn’t take a go-slow approach to the same-sex marriage question given the relatively short history of same-sex marriage in the US.
“You want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the internet?” Justice Alito said. “I mean, we don’t have the ability to see the future.”
“On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials,” Alito asked.
Solicitor General Verrilli said that contrary to an earlier comment by Cooper that California pushed a pause button, the state actually pushed a delete button. “This is a permanent ban,” he said.
The measure was placed in the state constitution to insulate it from political debate and the legislative process, he said.
How the case got here
The case stems from a lawsuit filed by two same-sex couples who charged that Prop. 8 violated their fundamental right to marry regardless of gender.
After a trial, a federal judge agreed and ordered state officials to stop enforcing the Prop. 8 ban. The California governor and attorney general declined to defend the ballot initiative and refused to appeal the judge’s ruling.
Lawyers for the organizers of the Prop. 8 initiative filed an appeal with the Ninth US Circuit Court of Appeals in San Francisco. The appeals court also found Prop. 8 unconstitutional, but on narrower legal grounds than the trial judge.
The appeals court ruled that the ballot initiative violated the Constitution’s guarantee of equal treatment by taking away the right to marry once it had already been granted by the state supreme court.
The case is Hollingsworth v. Perry (12-144). A decision is expected by late June.
Making a Difference