by Jeremy Leaming
Even before today’s oral argument in Hollingsworth v. Perry, some pundits urged the Supreme Court to go slow on same-sex marriage, essentially arguing marriage should be for the states to hash out and declaring that a Supreme Court decision that all states must recognize same-sex marriage could result in a backlash, thereby setting back efforts to advance equality for the LGBT community.
After reading the oral argument transcript, it seems that may be what happens since it did not appear a majority of justices were anywhere close to declaring that gay couples have a constitutional right to wed. That’s disconcerting since national polls and polls in California, birth of Proposition 8, reveal strong support for same-sex marriage. That’s not terribly surprising since marriage is about committed couples taking responsibility for each other and why should government officials want to discourage such responsibility.
Instead, the high court may be ready to dismiss the Prop 8 case on a technicality for it appeared that the high court’s left-of-center justices and possibly Chief Justice John Roberts and Justice Anthony Kennedy were not convinced that a few proponents of California’s anti-gay law are the proper people to be before the court.
Before Charles J. Cooper, attorney for the proponents of Prop 8, could delve into the substantive argument against same-sex marriage, he was asked by Chief Justice John Roberts, Jr. to address the “standing issue.”
Cooper said the proponents of Prop 8 “have standing to defend the measure before this Court as representatives of the people and the State of California to defend the validity of a measure that they brought forward.” (As noted in this interview with Columbia Law School Professor Suzanne Goldberg it is a bit odd for the Prop 8 proponents to insist they are representing the interests of the state of California, for the state’s governor and attorney general have both said the law should be invalidated as unconstitutional.)
Justice Stephen Breyer pointed to a friend-of-the-court brief filed on behalf of former U.S. Solicitor General Walter Dellinger saying it made a “strong argument” that the Prop 8 proponents “are really no more than a group of five people who feel really strongly” that they should vindicate the law.
The Dellinger brief, in part, argues that the proponents of Prop 8 have “noting more than a generalized interest in” enforcement of the law. Citing high court precedent, the brief continues, that “the generalized interest a party shares with all members of the public in proper enforcement of the laws is not sufficient” to establish standing.
Justice Sonia Sotomayor noted that the while the California Attorney General has “no personal interest” in defending Prop 8, she does have “a fiduciary obligation,” to which Cooper agreed.
The standing question, as the Dellinger brief persuasively argues, could prove to be the winning argument, giving the Court a way to avoid tackling the substantive question of whether gay couples have a constitutional right to wed.
The substantive argument from Cooper and many of the groups lodging friend-of-the-court briefs centered on an alleged overriding governmental interest in marriage as a tool primarily for promoting procreation.
Cooper said that Prop 8 proponents are arguing that the States' interest in marraige is about promoting procreation. He told Justice Elena Kagan that the “essential thrust of our position” is that the states have a really strong interest in regulating procreation.
Justice Stephen Breyer asked Cooper, “What precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile couples of different sexes to marry would not? I mean there are lots of people who get married who can’t have children.”
Cooper reiterated that “redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus, the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples.”
So could a state constitutionally bar people “over the age of 55” from getting married, if the state’s overriding concern is regulation of procreation, Kagan asked.
Cooper said such a regulation would not be constitutional, but added that “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 ….”
Before adding a flippant remark about ensuring that married couples are fertile, Justice Antonin Scalia, aping some of the arguments from groups that demonize gay couples as a threat to children, wondered whether finding same-sex marriage constitutional would endanger children.
“If you redefine marriage to include same-sex couples, you must permit adoption by same-sex couples, and there’s considerable disagreement among sociologists as to what the consequences of raising a child in a – in a single-sex family, whether that is harmful to the child or not. Some states do not … permit adoption by same-sex couples for that reason.”
Ted Olson, the attorney representing the aggrieved gay couples challenging Prop 8, in an exchange with Scalia argued that the case centered on whether or not a state could single out a group of people based on their sexual orientation and “remove from them the right of privacy, liberty and association, spirituality, and identity that marriage gives them.” He said it was insufficient to “say procreation or anything of that nature, because procreation is not part of the right to get married.”
In a piece for Brookings, Jonathan Rauch lauded the high court for “openly considering the political consequences of its decisions” since the court “just didn’t have enough clear law to decide the question before it.” Rauch noted that several of the justices did show interest in dismissing the Prop 8 case on technicality – that is finding that the Prop 8 sponsors lacked standing to defend the law. “The effect would be to knock down California’s gay-marriage ban on a technicality, without affecting the rest of the country.”
As eloquent an argument as Olson made for a more inclusive definition of marriage, one that would advance quality, and polls showing overwhelming support for committed gay couples to wed, it appears the high court justices may be behind public opinion on this issue. And if so, it could mean that many states will continue to discriminate against gay couples, to treat them with disdain and as second class citizens, for many years to come.