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Justices Hint at Fears of Acting Too Quickly on Gay Marriage Justices Hint at Fears of Acting Too Quickly on Gay Marriage
(about 2 hours later)
WASHINGTON — As the Supreme Court on Tuesday weighed the very meaning of marriage, several justices seemed to have developed a case of buyer’s remorse about the case before them. Some wondered aloud if the court had moved too fast to address whether gay and lesbian couples have a constitutional right to marry. WASHINGTON — As the Supreme Court on Tuesday weighed the very meaning of marriage, several justices seemed to have developed a case of buyer’s remorse. Some wondered aloud if the court had moved too fast to address whether gay and lesbian couples have a constitutional right to marry.
“I just wonder if this case was properly granted,” said Justice Anthony M. Kennedy, who probably holds the decisive vote.“I just wonder if this case was properly granted,” said Justice Anthony M. Kennedy, who probably holds the decisive vote.
Justice Sonia Sotomayor said there may be value in letting states continue to experiment. “Why is taking a case now the answer?” she asked. Justice Sonia Sotomayor seemed to agree. “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?”
Addressing the merits of the case during the first of two days of arguments on same-sex marriage, Justice Kennedy voiced sympathy for the children of gay and lesbian couples. 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 the court: whether voters in California were entitled to enact Proposition 8, which overturned a state Supreme Court decision allowing same-sex marriage.
“There’s some 40,000 children in California that live with same-sex parents,” he said, as the justices debated the state’s Proposition 8, which banned same-sex marriage. “They want their parents to have full recognition and full status. The voice of those children is important.” 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.
But Justice Kennedy also spoke of uncertainty about the consequences for society of allowing same-sex marriage. “We have five years of information to pose against 2,000 years of history or more,” he said, speaking of the long history of traditional marriage and the brief experience allowing gay men and lesbians to marry in some states. 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.
Justice Samuel A. Alito Jr. said the court should not move too fast. 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.
“You want us to step in and assess the effects of this institution, which is newer than cellphones and/or the Internet?” he said. When Justice Kennedy turned to the merits of the case, he voiced sympathy for the children of gay and lesbian 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 Justice 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 of the long history of traditional marriage and the brief experience 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.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.
Justice Elena Kagan, for instance, asked how letting gay and lesbian couples marry harmed traditional marriages. “How does this cause and effect work?” she asked. 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.”
Mr. Cooper said that “the state’s interest and society’s interest in what we have framed as ‘responsible procreation’ is vital.” Justice Elena Kagan asked him how letting gay and lesbian couples marry harmed traditional marriages. “How does this cause and effect work?” she asked.
Theodore B. Olson, representing the ban’s challengers, said California’s ban on same-sex marriage “walls off gays and lesbians from marriage, the most important relationship in life.” Mr. 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.
Several justices also challenged the notion that procreation was the key to the state’s interest in marriage. Justice Stephen G. Breyer asked Mr. Cooper about sterile opposite-sex couples. “There are lots of people who get married who can’t have children,” he said. That did not seem to satisfy several of the justices.
Justice Kagan raised the question of a man and a woman over 55 years old seeking to get married, despite the fact that they would not be able to have children. Mr. Cooper agreed that the court could not constitutionally ban such marriages, but returned to the hazards of a “redefinition” of marriage. Justice Stephen G. Breyer asked Mr. Cooper about sterile opposite-sex couples. “There are lots of people who get married who can’t have children,” he said.
Justice Antonin Scalia remarked wryly, “I suppose we could have a questionnaire at the marriage desk asking, ‘Are you fertile?'” When Justice Kagan noted that people were frequently asked about their age by the government, Justice Scalia joked about Senator Strom Thurmond, who fathered in his 70s and served in the Senate until age 100. Justice Kagan asked whether the government could ban a man and a woman over 55 years from getting married despite the fact that they would not be able to have children. Mr. Cooper said that the court could not constitutionally ban such marriages, but he said that was no reason to alter traditional definitions.
Mr. Cooper avoided a direct attack on same-sex marriage, which has rapidly gained public support in recent years. Instead, he argued that there was already under way a lively, democratic debate over “the age-old definition of marriage” and suggested that the court should not interrupt it. The court should not, he said, “put a stop to this democratic debate” over what he called “an agonizingly difficult issue.” Justice Antonin Scalia remarked, sarcastically, that the government could require people applying to a marriage license to fill out an intrusive questionnaire. When Justice Kagan noted that people were frequently asked about their age by the government, Justice Scalia joked about former Senator Strom Thurmond, who fathered in his 70s and served in the Senate until age 100.
There was also an extended discussion of a preliminary issue: whether the plaintiffs in the case actually have legal standing to challenge the state court ruling that overturned Proposition 8, the ballot initiative banning same-sex marriage. Chief Justice 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.”
Seconds into the morning hearing, as Mr. Cooper began his argument, Chief Justice John G. Roberts Jr. cut him off and asked him to address the standing issue. It could prove a crucial question, since the court could decide that they have no standing and effectively leave in place lower-court rulings striking down the same-sex marriage ban. 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 O.K.”
Mr. Olson said that the plaintiffs did not have standing. But his main argument was that Proposition 8 “walls off gays and lesbians from marriage,” which both sides in the case recognize as a fundamentally important institution. Mr. Olson said that a ban on same-sex marriage would have the effect of “labeling their most sacred relationship” as “not O.K.” Justice 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 Mr. Olson went back and forth on the question, sometimes talking over one another, but Mr. Olson did not answer.
Nine states and the District of Columbia allow gay and lesbian couples to marry. Polls show that a majority of Americans support same-sex marriage, suggesting that further gains are likely in state legislatures and at the ballot box. When Mr. Olson said “the label ‘marriage’ means something,” Chief Justice Roberts agreed – to a point.
The trends lend support to both sides. The ban’s challengers ask the court to provide leadership in cementing victories in what they call the civil rights issue of the day. Its defenders counter that the increase in the number of states that allow same-sex marriage shows that the democratic process is working and that the court should not interfere. “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 Mr. 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. They argued that California voters had violated the federal Constitution the previous year when they approved Proposition 8, overriding a decision of the state’s Supreme Court allowing same-sex marriages. The case, Hollingsworth v. Perry, No. 12-144, was filed in 2009 by Mr. 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. Mr. Boies looked on attentively as Mr. Olson presented his argument.
Judge Vaughn R. Walker of the Federal District Court in San Francisco agreed, issuing a broad decision that said the Constitution required the state to allow same-sex couples to marry. The decision has been stayed. 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 and lesbian couples married in states that allow such unions.
A divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, also in San Francisco, affirmed the decision. But the majority relied on a narrower ground, saying that 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. Almost half of Tuesday’s argument, which lasted almost 90 minutes, concerned the threshold 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.
The decision of the appeals court seemed calculated to avoid Supreme Court review or, at least, attract the vote of Justice Kennedy, the presumed swing member of that court. The first gambit failed, and the fate of the second is an open question. In affirming the trial court’s decision striking down Proposition 8, the United States Court of Appeals for the Ninth Circuit, 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.
“We do not doubt the importance of the more general questions presented to us concerning the rights of same-sex couples to marry, nor do we doubt that these questions will likely be resolved in other states, and for the nation as a whole, by other courts,” Judge Stephen R. Reinhardt wrote for the majority. That one-state solution did not seem to appeal to the justices. Justice Kennedy said the appeals courts had relied on “a very odd rationale.”
“For now,” he added, “it suffices to conclude that the people of California may not, consistent with the federal Constitution, add to their state Constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the state and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class.” Justice Sotomayor asked, “Is there any way to decide this case in a principled manner that is limited to California only?”
In urging the Supreme Court to strike down Proposition 8, the Obama administration suggested another path that would not immediately lead to requiring same-sex marriage throughout the nation. The administration argued that the court could require same-sex marriage in the eight states that provide committed gay and lesbian couples with all of the legal benefits and burdens of marriage through civil unions or domestic partnerships but withhold only the name “marriage.” 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.
This theory seems to apply to California and seven other states: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. 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, “the state has done absolutely nothing at all can do as it will.”
The Supreme Court has other options, too. It could establish a constitutional right to same-sex marriage that would apply to all 50 states. It could continue to leave the issue to individual states. Or it could duck a decision on the merits by finding that the parties who filed the appeal, proponents of Proposition 8, were not injured directly enough by the ruling striking down the ban to have standing to appeal. 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.
On Wednesday, the justices will hear two hours of arguments on the Defense of Marriage Act. When Mr. Cooper rose to give his rebuttal at the end of the session, Justice Kennedy asked the first question. “You might address,” the justice said, “why you think we should take and decide this case.”