I’m not sure exactly what the Supreme Court will do about the challenge to California’s gay marriage ban, Proposition 8, which was argued today. But to my great relief, I didn’t count five votes to uphold it.
Anthony Kennedy, the swing justice whose vote is so crucial that the courtroom became absolutely silent each time he opened his mouth, doesn’t like this case, Hollingsworth v. Perry, any more, if he ever did. “The problem with the case is that you’re really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters,” Kennedy said to Ted Olson, the lawyer challenging the California ban. “You can play with that metaphor, there’s a wonderful destination, it is a cliff,” Kennedy joked, to laughter. But then he continued with vexation, “I just wonder if this case was properly granted.” (Here’s this morning’s audio.)
Yet Kennedy also hit the morning’s high note of urgency and emotion. “There is an immediate legal injury or legal—what could be a legal injury,” he said in an exchange with Prop 8’s defender, lawyer Charles Cooper, “and that’s the voice of these children. There are some 40,000 children in California . . . that live with same-sex parents. They want their parents to have full recognition and full status. The voice of these children is important, don’t you think?”
Yes, it is. And in recognizing that, Kennedy made me think that perhaps the “newness” of same-sex marriage, as he put it, wouldn’t prevent him from kicking the can down the road. Especially because Justices Ruth Bader Ginsburg and Sonia Sotomayor expressed clear doubts about whether the Prop 8 defenders had standing to be in court. Maybe there will be a majority for making the case go away.
But if not, it is very hard for me to see how Prop 8 will stand. The arguments in support of the ban, and against gay marriage, have evaporated over the last few years, to the point that even Justice Antonin Scalia, who suggested recently that same-sex marriage is immoral, like murder—came across as rather muted this morning. When Cooper floundered on the question of what harm allowing gay marriage would do, Scalia tried to bail him out by bringing up the idea that growing up with gay parents could be “harmful to the child.” But a few minutes later, Scalia—usually fearless and bold—hedged. “I take no position on whether it’s harmful or not,” he said.
That uncertainty—gay marriage must be bad, it’s just not clear why—was a theme of the morning. Asked to identify the harm same-sex marriage poses to the state’s interest, Cooper couldn’t answer clearly. “Could you explain a little bit, just because I did not pick this up from your brief,” Justice Elena Kagan said to Cooper. “How does the cause and effect work?”
Cooper demurred that this wasn’t the question before the court—his side only had to show that allowing gay marriage would not advance the interests of marriage as a state institution.
“Well then, are you conceding the point that there is no harm or denigration to traditional opposite-sex couples?” Kennedy asked sharply.
“No, your Honor, no,” Cooper answered. But when Kennedy pressed, all Cooper came up with was that “redefining marriage will have real-world consequences” and that “it is impossible for anyone to foresee the future accurately enough to know what those real-world consequences would be. And among those real-world consequences, your Honor, we would suggest, are adverse consequences.”
Such as? Cooper never said. That’s why Scalia brought up the bugaboo that being raised by gay parents hurts kids—never mind all the medical, social work, and psychological groups who say otherwise. And Ginsburg had another comeback: In California, where Prop 8 is law, gay couples already have full adoption and parenting rights. So this is obviously not the harm the state is trying to prevent.
All of this forced Cooper to try the Hail Mary pass opponents of gay marriage have come up with: the strange notion that the foundation of the whole institution is not family or social stability, but coitus. Or, as Cooper put it, “The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes.”