Justices Signal They Want to Move Slowly on Same-Sex Marriage

James Oliphant
National Journal

It was as if the justices of the Supreme Court felt the weight of history on their shoulders Tuesday and did what they could to shrug it off.

Almost immediately as oral arguments began in the California case that tests whether constitutional protection exists for same-sex marriages, several justices wanted to see if they could quickly find a way out, directing counsel on both sides to argue why the case should be considered by the high court at all and wondering aloud whether the question was one best left for others to decide.

For the liberals on the Court, it was a matter of whether those who brought the challenge, the same forces who were behind the state ballot initiative that invalidated gay marriage in California, had the legal status to bring suit after the governor and attorney general of the state declined to appeal a trial court ruling that the initiative, Proposition 8, is unconstitutional. Those liberals may believe the court, with its five-justice conservative majority, could do more harm than good here for the cause of gay rights.

For the conservatives, it was whether the court should be wading into the waters of setting social policy at all—or whether it should sit back and wait for the states and voters to reach some form of national consensus. “I just wonder if this case was properly granted,” Justice Anthony Kennedy, who, as usual, looms as a crucial vote, mused aloud at one point. Kennedy, like his colleagues, seemed mindful of the throngs of demonstrators outside the chamber who viewed the case as a crucible for civil rights. “You’re asking us to go ... into uncharted waters,” he said.

The lawyer for the supporters of Proposition 8, Charles Cooper, advised the Court to allow the national debate to continue and to not “put a stop” to it by finding that the Constitution protects the rights of gays and lesbians to marry.

The conservatives on the Court, Justices Antonin Scalia and Samuel Alito chief among them, seemed to fear the Court was moving ahead of the country on the issue. “How am I supposed to know how to decide this case?” an exasperated Scalia asked at one point.

Alito seemed to regard same-sex marriages as a vexing aspect of modern life, saying it was a more recent development than “cell phones” and the “Internet.”

“Traditional marriage has been around for thousands of years,” Alito said. “Same-sex marriage is very new.” There isn’t enough data, he said, to examine “its effects.”

“We do not have the ability to see the future,” he said.

In that vein, Cooper repeatedly likened same-sex marriage to a social “experiment,” and Scalia questioned whether the real issue was whether to allow gay couples to adopt children. “Whether that is harmful to the child” is unclear, he said. It could have a possible “deleterious effect.”

“There’s no scientific answer to this question at this time,” Scalia said.

Later in the nearly 90 minutes of argument, Cooper, a well-known lawyer in conservative circles in Washington, suggested the experiment was one that needed to “perk” in society for awhile before the Court intervened. “We let racial segregation perk for 50 years,” he argued.

Even Chief Justice John Roberts, who many same-sex marriage supporters viewed as a possible yes vote on a constitutional right, seemed skeptical about whether California gay couples actually lost anything when their right to marry was revoked by Proposition 8, since the state extends rights and privileges to them regardless through civil unions. “It’s just about the label,” he said to Theodore Olson, the lawyer for Proposition 8’s opponents.

“The label means something,” Olson countered.

For his part, Kennedy was clearly troubled by the argument offered by Olson and the lawyer for the Obama administration, Solicitor General Donald Verrilli Jr., that California had violated the Constitution by stripping couples of their right to marry. Olson and Verrilli contended that because the state has granted a bevy of rights to homosexual couples, there was no justification for arbitrarily drawing the line at marriage.

Kennedy argued that such a distinction punished states such as California for being at the forefront of the gay-rights movement. And in an admittedly contorted argument, Verrilli conceded that the Obama administration wasn’t prepared to argue that the Court should recognize a same-sex marriage right in states that had not adopted some form of civil union.

That caused some quibbling among the liberal bloc. Justice Stephen Breyer worried that the wrong result in the case would discourage other states from moving ahead with extending rights to gay couples because then they would have no basis on which to deny them the right to marry. “That’s much more harmful,” Breyer said.

But those liberals were more apt to see the case as an issue of fairness and of equal treatment. They were scornful of Cooper’s suggestion that the primary state interest in defining marriage involved regulating procreation. What about infertile couples, they wondered? Could you exclude them from marriage? What about couples over 55? What about prisoners?

And Kennedy, as usual, showed he was wrestling with his role as a potential swing vote, asking Cooper about the estimated 40,000 children in California whose parents cannot marry legally. “The voice of these children is important,” he said.

Olson, who served as President George W. Bush’s top official before the high court, had no qualms casting the case as a civil-rights imperative. Proposition 8 “walls off gays and lesbians in marriage,” he said, “and thus stigmatizes them.”

He frequently cited the Court’s willingness in 1967, under Chief Justice Earl Warren, to outlaw bans on interracial marriage, even though states were divided on the issue and argued sexual orientation was as immutable as skin color.

In doing so, Olson was implicitly warning the justices that, as an institution, the Court could end up on the wrong side of progress in fashioning a decision that it may later repudiate. He cited Justice Ruth Bader Ginsburg’s 1992 opinion in the case that brought down all-male educational bastions such as the Virginia Military Institute. The history of the Court, Olson said, is the “extension of constitutional rights and protections to people once ignored or excluded."

Arguments in a related case that pertain to the constitutionality of the federal Defense of Marriage Act, which denies federal benefits to same-sex couples even if they are legally married, will be heard Wednesday.

In the Proposition 8 case, the justices don’t have to go so far as to find the ban constitutional—or identify a constitutional right for gays and lesbians to marry, for that matter. They could ultimately decide that the challengers lack the legal standing to bring the case, which would effectively invalidate the ban and would affect marriage rights only in California or invalidate the restriction on other state-specific grounds.

Judging from the mood in the chamber Tuesday, several justices are already looking for an off-ramp.