How is marriage defined?
March 27, 2013 10:40 AM

WASHINGTON — As the Supreme Court on Tuesday weighed the momentous question of whether gay and lesbian couples have a constitutional right to marry, six justices questioned whether the case, arising from a California ban on same-sex marriages, was properly before the court and indicated that they might vote to dismiss it.

“I just wonder if the case was properly granted,” said Justice Anthony M. Kennedy, who probably holds the decisive vote, in a comment that showed a court torn over whether this was the right time and right case for a decision on a fast-moving social issue.

Justice Sonia Sotomayor seemed to share that concern. “If the issue is letting the states experiment and letting the society have more time to figure out its direction,” she said, “why is taking a case now the answer?”

Those justices and others seemed driven to that conclusion by an argument in which no attractive middle ground emerged on the substance of the question before them: whether voters in California were entitled to enact Proposition 8, which overturned a state Supreme Court decision allowing same-sex marriage.

Justices who appeared sympathetic to same-sex marriage indicated that there was no principled way to issue a ruling that could apply only in California or only in the nine states that have robust civil union or domestic partnership laws but withhold the word marriage.

That appeared to leave the court with an all-or-nothing choice on the merits: either a ruling that would require same-sex marriage in all 50 states or one that would say that all states may do as they wish. Neither choice seemed attractive to a majority of the justices.

Five members of the court asked questions indicating that they might vote to dismiss the case on the threshold issue that supporters of Proposition 8 lacked standing to appeal a lower court’s decision. Chief Justice John G. Roberts Jr., whose questions on the merits indicated discomfort with requiring states to allow same-sex marriage, seemed particularly interested in the standing issue.

Kennedy seemed more open to the possibility that the proponents of Proposition 8 had standing, but he twice asked lawyers why the court should not dismiss the case outright. When the justices have second thoughts about agreeing to hear a case, they sometimes dismiss it as “improvidently granted.”

Questions from the justices do not always reliably forecast votes, and many of the justices also indicated their views of the central issue presented in the case.

When Kennedy turned to the merits of the case, he voiced sympathy for the children of gay couples.

“There are some 40,000 children in California,” he said, who “live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case.”

But Kennedy said he was uncertain about the consequences for society of allowing same-sex marriage. “We have five years of information to weigh against 2,000 years of history or more,” he said, referring to the long history of traditional marriage and the brief experience of allowing gay men and lesbians to marry in some states.

Justice Samuel A. Alito Jr. echoed the thought and said the court should not move too fast.

“You want us to step in and render a decision based on an assessment of the effects of this institution, which is newer than cellphones or the Internet?” he said.

Many of the questions directed to Charles J. Cooper, a lawyer for opponents of same-sex marriage, concerned whether there was any good reason to exclude same-sex couples from the institution.

He counseled caution. “It is an agonizingly difficult, for many people, political question,” he said. “We would submit to you that that question is properly decided by the people themselves.”

Justice Elena Kagan asked him how letting gay couples marry harmed traditional marriages. “How does this cause and effect work?” she asked.

Cooper responded that “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.” The key to marriage, he said, is procreation.

That did not seem to satisfy several of the justices.

Justice Stephen G. Breyer asked Cooper about sterile opposite-sex couples.

“There are lots of people who get married who can’t have children,” he said.

Kagan asked whether the government could ban a man and a woman who are over 55 from marrying because they would not be able to have children. Cooper said the court could not constitutionally ban such marriages, but he said that was no reason to alter traditional definitions.

Justice Antonin Scalia remarked, sarcastically, that the government could require people applying for a marriage license to fill out an intrusive questionnaire. When Kagan noted that people were frequently asked about their age by the government, Scalia joked about former Sen. Strom Thurmond, who fathered a child in his 70s and served in the Senate until age 100.

Roberts said history was on the side of traditional marriage. “The institution developed,” he said, “to serve purposes that, by their nature, didn’t include homosexual couples.”

Theodore B. Olson, representing two couples challenging Proposition 8, said it was pernicious. “It walls off gays and lesbians from marriage, the most important relation in life,” he said, “thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal and not OK.”

Scalia asked when it became unconstitutional to deny same-sex couples the ability to marry. His suggestion was that the constitutional text at the time of its adoption could not have been understood to allow such a thing. He and Olson went back and forth on the question, sometimes talking over each other, but Olson did not answer.

When Olson said “the label ‘marriage’ means something,” Roberts agreed — to a point.

“If you tell a child that somebody has to be their friend, I suppose you can force the child to say, ‘This is my friend.’ But it changes the definition of what it means to be a friend.”

The case, Hollingsworth v. Perry, No. 12-144, was filed in 2009 by Olson and David Boies, two lawyers who were on opposite sides in the Supreme Court’s decision in Bush v. Gore, which settled the 2000 presidential election. Boies looked on attentively as Olson presented his argument.

The Supreme Court will hear a second same-sex marriage case on Wednesday, United States v. Windsor, No. 12-307, concerning the federal Defense of Marriage Act. The court is quite likely to reach the merits of that case, which concerns a part of the law that bans the federal government from providing benefits to gay couples married in states that allow such unions.

Almost half of Tuesday’s argument, which lasted almost 90 minutes, concerned the issue of whether proponents of Proposition 8 have standing. California officials lost in the trial court, and they did not appeal the judgment against them. Proponents of the initiative did appeal, but several justices said they had neither suffered a direct injury nor were authorized to represent the interests of the state.

In affirming the trial court’s decision striking down Proposition 8, the 9th U.S. Circuit Court of Appeals, in San Francisco, relied on a narrow ground, saying that the state’s voters were not permitted to withdraw the right to marry once it had been established by the state Supreme Court. The logic of the ruling was thus confined to California.

That one-state solution did not seem to appeal to the justices. Kennedy said the appeals courts had relied on “a very odd rationale.”

Sotomayor asked, “Is there any way to decide this case in a principled manner that is limited to California only?”

Nor was the court taken with the position of Solicitor General Donald B. Verrilli Jr., who argued that the court should require same-sex marriage in states that provide all of the burdens and benefits of marriage but withhold the name. Eight states in addition to California will soon be in that situation.

Justice Ruth Bader Ginsburg said the distinction made no sense. “A state that has made considerable progress has to go all the way,” she said. But, she added, if “the state has done absolutely nothing at all, then it can do as it will.”

Having indicated their discomfort with one-state and nine-state middle grounds, the justices found themselves facing an uncomfortable all-or-nothing choice. Some seemed prepared to blink.

When Cooper rose to give his rebuttal at the end of the session, Kennedy asked the first question. “You might address,” the justice said, “why you think we should take and decide this case.”

Scott Shane contributed reporting.

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