A sharply divided US Supreme Court heard oral argument on Tuesday in a potentially historic case examining the constitutionality of a 2008 statewide ballot initiative that banned same-sex marriage in California.
During the 80-minute argument, the justices appeared to separate along traditional liberal-conservative lines, with Justice Anthony Kennedy in the center of the court.
The argument session included some tough, hardball questions, but overall the justices seemed tentative and reluctant. It did not have the feel of a court preparing to issue a landmark decision.
At one point Justice Kennedy, while struggling to identify a way to resolve the case, suggested that perhaps the case should be dismissed.
“The problem with this case is that you are really asking … for us to go into uncharted waters,” Kennedy said.
The contested measure, known as Proposition 8, reversed a California Supreme Court ruling five months earlier that had, for the first time, recognized a right of gay men and lesbians to marry.
The Prop. 8 case, and a similar challenge to the federal Defense of Marriage Act scheduled for argument on Wednesday, have become flashpoints in the nation’s culture wars. The high court showdown marks the first time in more than 40 years that the justices are being asked to examine what limits, if any, the Constitution imposes on the government’s power to restrict who can – and cannot – get married.
Currently, nine states and the District of Columbia recognize same-sex marriage. Eight others grant gay and lesbian couples rights under civil partnerships.
In contrast, 31 states have amended their constitutions to ban same-sex marriage – including California via Proposition 8. A handful of other states passed statutes banning the practice.
A personal right?
Former Solicitor General Theodore Olson, representing two same-sex couples challenging Prop. 8, told the justices that marriage is a fundamental right of all Americans, regardless of gender. He said the exclusion of gay and lesbian couples from marriage renders them second-class citizens.
“This is a measure that walls off the institution of marriage,” he said. Getting married is not society’s right, but an individual right, he added.
“This court again and again and again has said the right to get married … is a personal right. It’s part of the right of privacy, association, liberty, and the pursuit of happiness,” Mr. Olson said.
Washington Lawyer Charles Cooper told the court that the concept of marriage as a union of one man and one woman has prevailed throughout most of human history and need not be redefined now.
Mr. Cooper, representing leaders of the Prop. 8 campaign, said the concept of marriage is at the center of an earnest national debate. “The question before this court is whether the Constitution puts a stop to that ongoing democratic debate and answers this question for all 50 states,” he said.
He urged the justices not to issue a constitutional ruling imposing same-sex marriage nationwide. Instead, he said the states should continue to be free to decide for themselves how to approach the issue.
The question of harm
Justice Elena Kagan wanted to know what harm would come to the institution of marriage or to opposite-sex married couples if the definition of marriage expanded to include same-sex couples.
Cooper said it wasn’t the correct legal question. “The correct question is whether or not redefining marriage to include same-sex couples would advance the interests of marriage,” he said.
"Are you conceding that there is no harm,” Kennedy asked.
Cooper replied that redefining marriage would have real-world consequences, but that it was impossible to foresee accurately what those adverse consequences might be.
“I think it is better for California to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing,” he said.
Kennedy said he found substance in the point that sociological information about the impact of same-sex marriage is still new. “We have five years of information [about same-sex marriage] to weigh against 2,000 years of history or more [concerning traditional marriage],” he said.
But Kennedy wasn’t finished making his point. He said that on the other hand, children being raised by gay and lesbian parents in California want their parents to have full recognition and full status. They want it now.
“The voice of those children is important in this case, don’t you think,” Kennedy asked Cooper.
Although they could not be heard inside the courtroom, a large crowd of gay rights supporters gathered on the sidewalk in front of the Supreme Court, chanting and waiving signs.
Earlier, hundreds waited in line in 30-degree weather hoping for a seat in the courtroom. Some had been waiting since Thursday, camping outside the courthouse through snow and freezing rain over the weekend.
Inside, the courtroom was warm – and packed. Among notable attendees was Hollywood director and producer Rob Reiner, who was instrumental in organizing the legal talent and raising money to fund the Prop. 8 legal challenge.
Prior to the argument, Olson crossed the courtroom to greet Mr. Reiner and his entourage. He hugged each member and then after hugging Reiner, kissed him on the cheek.
Olson is best known as the Republican lawyer who argued and won Bush v. Gore. He later served as President Bush’s solicitor general. Joining Olson at counsel’s table was his opponent in Bush v. Gore, legendary New York litigator David Boies.
Olson vs. Scalia
If Olson’s presence at the podium was meant to appeal to the more conservative members of the court, that tactic does not seem to have paid off.
At one point Justice Scalia noted that it is the role of the Supreme Court to say what the law is, not to prescribe law for the future. He then posed a question to Olson: “When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?”
Olson responded with a rhetorical question. “When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?”
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.
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.