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.”
The problem with this argument is that it leaves out too many people. “Suppose a state said that because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55,” Kagan asked. “Would that be constitutional?”
Cooper said no. (He had to.) “So why is that different?” Kagan pressed.
“Even with respect to couples over the age of 55, it is very rare that both parties to the couple are infertile,” Cooper claimed. Really? Maybe he needs to go to science class with Todd Akin. “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,” Kagan politely told him. Cooper responded with a garbled speech about how “society’s interest in responsible procreation isn’t just with respect to the procreative capacities of the couple itself. The marital norm, which imposes the obligations of fidelity and monogamy, your Honor, advances the interest in responsible procreation by making it more likely that neither party, including the fertile party—”
I don’t know what that means. Scalia tried a riff about asking people their fertility status at the marriage license desk, which somehow led to the ghost of Strom Thurmond. Scalia couldn’t manage to say directly that the former South Carolina senator fathered a child in his 70s. He made do with this non sequitur: “Strom Thurmond was not the chairman of the Senate committee when Justice Kagan was confirmed.”
OK, now you’ve heard all the laugh lines, intentional and not. What remains is the serious question of how the justices will resolve this case, if they don’t kick it for lack of standing or a proper grant of review. Asked whether the court could strike down Prop 8 without legalizing gay marriage in all 50 states, Ted Olson (thankfully) said yes. He pointed to the California-only decision of the U.S. Court of Appeals for the 9th Circuit: California is different, that court said, because it is the only state that granted the right to gay marriage (via a California Supreme Court ruling in 2008) and then, after allowing thousands of couples to wed, took that right away.
What Olson is really asking for, however, is far more sweeping: “Marriage is a fundamental right,” he said, implying that same-sex marriage should be legal in every state. The question before the court, Olson continued, is whether a state “can take a class of individuals based upon their distinguishing characteristics, [and] remove from them the right of privacy, liberty, association, spirituality, and identity that marriage gives them.” Kennedy acknowledged, “That’s a broad argument that is in this case if the court wants to reach it.”
It was far more stirring to listen to Olson than to Solicitor General Donald Verrilli Jr., who made the narrower, less fulfilling case for requiring gay marriage to be legal only in the eight states, including California, that currently allow civil unions. Verrilli’s notion is that in these states, which provide all the rights and benefits of marriage without the name, there is no justification for denying that last bit of status. Kennedy pointed out that this means penalizing a state “for not going far enough,” and he called this a “very odd rationale.” Justice Stephen Breyer seemed even more skeptical. “A state that does nothing for gay couples hurts them much more than a state that does something,” he said. “And yet your brief seems to say it’s more likely to be justified under the Constitution.” What were the “good arguments,” Breyer wanted to know, for allowing the 30-plus states that allow neither same-sex marriage nor civil unions to continue to exclude gay couples completely?
Verrilli’s answer was the low point of the morning: He talked about a future case for banning gay marriage based on the “effects on children.” He made no mention of all the evidence—relied on by groups like the American Academy of Pediatrics and the American Psychological Association—that kids of gay parents in fact come to no harm. Sure, in theory, some future study could alter the picture. But why should the Obama administration bolster this hypothetical, against the current evidence? I don’t get it.
Still, if that’s the worst thing that happened on the day the Supreme Court discussed gay marriage for the first time, it's a victory. There were signs of opposition to gay marriage from Chief Justice John Roberts and Justice Samuel Alito as well as Scalia (surely joined, in silence, by Justice Clarence Thomas). At one point, Roberts suggested that the fight for same-sex marriage is “just about the label,” adding, “you can tell a child that someone has to be their friend. They may say they are a friend, but you are changing the meaning of the label." Apparently we shouldn’t read too much into the presence in the courtroom of Jean Podrasky, a first cousin of Roberts’ who is a lesbian, in a seat reserved for his guests.
And yet Podrasky’s attendance was one more measure of how many people have gay family members they embrace. Also relevant are the polls showing rising support for same-sex marriage at a fast clip, and the 100-plus prominent Republicans who came into the case on the side of marriage equality.
Yes, gay marriage is a relatively new idea, but long-term, committed gay relationships are not. They’ve brought with them all the blessings of straight relationships, and that, too, matters for shaping and reshaping attitudes. Maybe Kennedy focused on the children of gay parents, and the stability and status they stand to gain if their parents can get married, because it’s become clear that nothing else is much at stake here. The rest of us—and the hallowed institution of marriage—will be just fine.
Read more from Slate’s coverage of gay marriage.