Is the Supreme Court Going to Take the Cowardly Way Out on Marriage Equality?
Photo Credit: A.M. Stan
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Is same-sex marriage poised to be reborn in California? That’s the impression left after the Supreme Court’s hearing Tuesday, where Justices split along predictable ideological lines and the usual swing vote, Justice Anthony Kennedy, suggested that it was a mistake for the court to take up the California case—let alone produce a history-making ruling.
As a result, given the case’s convoluted history, some astute court watchers are saying the Justices may find a way to back off making any decision. That result would leave in place a lower court ruling that invalidated California’s Prop. 8, the anti-same-sex marriage law. Thus, following that tortuous legal path, in California, gay marriage would resume.
The “way out was directly suggested by Kennedy, and pursued by him in more than a fleeting way: dismiss this case as one that should not have been accepted,” wrote Lyle Denniston of SCOTUS blog, who has covered the Court for more than 50 years. “Should that be the outcome, it would be a huge let-down for political, legal and cultural warriors on both sides of the gay marriage issue, but would have the effect of leaving the issue to be worked out in state legislative halls and at the ballot box, one state at a time, at least for the time being.”
The Prop. 8 case is one of two same-sex marriage cases to come before the Court this week. The second, to be heard Wednesday, concerns whether the federal Defense of Marriage Act is unconstitutional because same-sex partners of federal employees aren’t treated equally under the law as heterosexual spouses. The California case is seen as raising more fundamental equality issues, because it involves marriage as a state-sanctioned institution, not just how a federal law works.
From the start of Tuesday’s Prop. 8 hearing, it was clear that the religious conservatives opposing same-sex marriage had little new to say. Charles Cooper, the lead attorney for Prop. 8’s backers—which was passed by voters in 2008 and banned gay marriage, only to be overturned by federal district and appeals courts—kept restating his side’s view that same-sex marriage was at odds with his definition of family. Genderless marriage would undermine child rearing, he said, which was an interest the state should protect.
To his credit, Justice Kennedy didn’t buy that predictable argument. He said that “40,000 children” were already being raised by same-sex couples and that they have an interest in their parents’ legal rights. But he also said that it was too soon in the history of same-sex marriage as an institution for the Court to weigh in and make a civil rights decision for the nation.
As Cooper floundered under questioning from the Court’s liberal block, Justice Antonin Scalia had to interrupt to rescue him. Scalia, as he often does, raised an issue that has nothing to do with the case, saying some states ban gay adoptions. Scalia was quickly rebuked by Justice Ruth Bader Ginsburg, who said that wasn’t in the case before the court.
The hearing continued with three liberal justices—Stephen Breyer, Elena Kagan and Ginsburg—challenging Cooper’s contention that the goal of marriage was procreation. Kagan said people older than 55 get married and don’t plan to have children, to which Cooper replied that much older men become fathers. That ‘patriachal’ view prompted groans from the courtroom.
When the defenders of the federal court rulings that overturned Prop. 8 came before the Court, they stuck to the classic civil rights argument: same-sex marriages should not be treated under law as a second-class relationship. Indeed, as the California Supreme Court said in rulings on attacks on same-sex marriage, such subordinated status stigmatizes gays and encourages discrimination.
Chief Justice John Roberts replied by towing the ‘traditional’ marriage line, saying that Prop. 8 might be more about protecting the institution of marriage than about harming same-sex couples. That response revealed that he was not thinking with much nuance—unlike Kennedy—or a sense of civil rights history.
Scalia, as expected, went on the attack, asking when it became unconstitutional to bar gays and lesbians from marrying. Ted Olson, the former Republican Solicitor General who has championed gay marriage in recent years, threw it back at Scalia, asking when did it become unconstitutional to ban interracial marriage? Scalia tried to scold Olson, saying don’t answer my question with a question. Olson said it didn’t matter; courts do need that kind of precision to rule on this civil rights issue.
Kennedy said that he didn’t like the rationale given by the Ninth U.S. Circuit Court of Appeals that invalidated Prop 8. That ruling said Prop. 8 could not take away marriage rights previously given to same-sex couples, given that the state has given many of the same rights given to heterosexual couples. Roberts then asked if the whole case was really about the “label” of marriage, because same-sex couples had other legal rights in California, and then restated that the important part of marriage was having children.
When the Obama Administration’s lawyer took the stand—arguing in support of same-sex marriage—Roberts and fellow conservative, Justice Samuel Alito, both said that it was too soon for the government to be demanding that same-sex marriage be federally recognized. Alito said that same-sex marriage was first recognized in law in the Netherlands in 2000, making it “newer” than cellphones and the Internet.
What this is all means is that given the Justices’ diverging views on what constitutes marriage, as well as the conservative block’s reluctance to elevate same-sex marriage as a civil right, it’s likely that the Court will find a way to step back from ruling. That means that the lower court decisions overturning California’s Prop. 8 would hold, giving Californians a same-sex marriage victory but making national progress on marriage equality an ongoing, years-long struggle.
By all accounts, it was an historic day. And judging by the circus that ensued in the street in front of the Supreme Court as the justices heard oral arguments in the first of two cases it will consider on the legality of same-sex marriage, passions ran high.
When anti-marriage equality forces marched to the Supreme Court, where pro-LGBT activists had already assembled, the stage was set for a confrontation involving a barrage of chants, and a battle of banners and signs.
Photos and text by Adele M. Stan, AlterNet's Washington bureau chief.