During arguments on California's ban on same-sex marriages, the U.S. Supreme Court on Tuesday seemed reluctant to hold nationally that gay couples have the fundamental right to marriage.
In wide-ranging and fast-paced arguments before a packed courtroom, a number of justices expressed concern about moving too fast given the “newness” of same-sex marriage. And they raised serious questions, as well, about the standing of proponents of the ban, known as Proposition 8, to defend it. The ban's proponents intervened to defend it after California officials refused to do so.
“You're asking us to go into uncharted waters in a case where the (lower court) opinion is very narrow, and there is a substantial question of standing,” Justice Anthony Kennedy told Theodore Olson of Gibson, Dunn & Crutcher, counsel to two gay couples challenging the California ban. "I wonder if the case was properly granted."
In the end, a majority of justices appeared to be searching for a narrow, California-specific way to decide the case.
In Hollingsworth v. Perry, the proponents of the ban—the official ballot initiative committee—ask the justices whether the 14th Amendment's equal protection clause prohibits California from defining marriage as the union between a man and a woman. A panel of the U.S. Court of Appeals for the Ninth Circuit struck down the ban because California had previously granted marriage status to gay couples and then withdrew it by Proposition 8. That withdrawal of a right once given, the panel concluded, was based on animus and that violated the equal protection clause.
During arguments on Tuesday, Charles Cooper of Cooper & Kirk, representing the ban's supporters, defended his clients' standing by relying on a decision to that effect by the California Supreme Court. But he faced skeptical questions from justices Sonia Sotomayor and Elena Kagan who pressed him on what injury his clients suffered that gave them standing. Cooper argued that the injury was to the state and under the California constitution, initiative proponents have a responsibility to defend an initiative if state officials do not.
Cooper pressed his central argument that the purpose of marriage is to ensure procreation in stable, two-parent relationships. "We say the state interest in procreation is vital." However, Kagan asked if procreation is the central purpose of marriage, could a state deny marriage licenses to anyone over age 55.
"No," Cooper responded, adding that it is "very rare" that both parties of that age are infertile. To which, Kagan said, "I can assure you that if both are over 50, there's not a lot of children coming out of that marriage."
Olson countered Cooper's central argument by saying that marriage is an individual, personal right, a part of privacy, liberty and association rights. And, he added the court has recognized that in many of its marriage decisions.
Justice Antonin Scalia pressed him repeatedly on when exactly it became unconstitutional to exclude gay couples from marriage. Olson said the court had never required a date. In this case, he added, the California Supreme Court had found it unconstitutional and "we as a culture" are concluding that it is unconstitutional.
The Obama Administration's argument ran into considerable skeptical questions from both wings of the court. Solicitor General Donald Verrilli Jr. argued that same-sex marriage should be imposed on those states that already grants all of the benefits and duties of that status through their recognition of civil unions—nine states.
"So a state that has made considerable progress has to go all the way, but a state that has made no progress doesn't have to do anything at all?" asked Justice Ruth Bader Ginsburg, who along with Justice Stephen Breyer, saw that argument as "internally inconsistent."
But Verrilli said, "We're not prepared to close the door (on states that might have legitimate interests not yet known)." The Proposition 8 proponents have offered no state interest to justify the exclusion of gay couples when the state already gives them all of the benefits of the marriage status, he argued.
The justices on Wednesday will hear arguments in U.S. v. Windsor, a challenge to Section 3 of the federal Defense of Marriage Act, which defines marriage as the union of a man and woman for all federal purposes.
Marcia Coyle can be contacted at email@example.com.