By David Horsey
5:00 AM PDT, March 27, 2013
This week, the United States Supreme Court is delving into arguments about same-sex marriage and doing so with apparent reluctance and unease.
Today, the justices will consider the federal Defense of Marriage Act that denies federal benefits to same-sex married couples. On Tuesday, the issue before them was California’s Proposition 8, the voter-approved initiative that placed a same-sex marriage ban in the state constitution in 2008. A U.S. District Court judge subsequently declared the ban unconstitutional, and in 2012 the U.S. 9th Circuit Court of Appeals upheld that ruling.
During oral arguments, some of the nine justices appeared uncomfortable jumping into the gay marriage debate at all. Much time was spent arguing about whether the petitioners on the pro-Prop. 8 side had legal standing to bring the appeal. Determining that they do not, the court could let the lower court’s ruling stand. They could also simply uphold the 9th Circuit’s decision. Either way, the justices could avoid a broader judgment that homosexuals have a constitutional right to marry in all 50 states.
Also wanting to stop short of that outcome, yet still urging the justices toward a somewhat broader middle ground, Solicitor Gen. Donald Verrilli Jr. offered a position that would open the way to same-sex marriage only in states such as California that already give homosexual couples every legal benefit accorded married persons except the right to marry. Because such states have essentially conceded that there is no societal harm in established domestic partnerships, those states cannot reasonably contend there would be harm in letting same-sex partners marry, Verrilli argued.
The perverse aspect of this position was readily apparent to the justices, however. They noted that following this path would force gay marriage on states that have been generous to same-sex couples while demanding nothing from the most regressive states that grant no legal benefits to homosexual partners.
Even more untenable was the core argument of the attorney for the pro-Prop. 8 petitioners, Charles J. Cooper. He asserted that marriage is primarily an institution that society has established to formalize and manage the production of offspring. Since, by nature, children cannot be conceived by two women or two men, homosexuals cannot carry out that prime purpose of marriage and, therefore, have no equal claim on matrimonial rights, he said.
This led to an amusing exchange between Cooper and Justice Elena Kagan. Kagan said, by Cooper’s reasoning, a 55-year-old couple could be barred from marrying since they could not produce offspring. Laughter erupted from the courtroom audience when Cooper responded by noting the 55-year-old man, at least, would be fertile. Justice Antonin Scalia chimed in with weird comments about the fertility of the very elderly former senator from South Carolina, Strom Thurmond. How that was germane only Scalia knows.
Oddly, no one pointed out that homosexual couples actually are producing children through sperm donors and surrogate mothers. They are also becoming parents via adoption. Justice Anthony M. Kennedy noted that, in California alone, 40,000 children are being raised by homosexual parents. In the modern world, there is more than one path to parenthood.
Seeking more solid ground for their skeptical view of same-sex marriage, Chief Justice John G. Roberts Jr. and the other court conservatives rallied around the idea that moving too fast on same-sex marriage would be unwise because it is a novel idea that breaks with tradition. Theodore B. Olson, representing the anti-Prop. 8 side, offered the obvious and most pertinent rejoinder: interracial marriage was illegal until the Supreme Court invalidated laws against it in 1967. Such laws enforced a traditional view and were supported by large majorities, not just in the South, but all over the country. Yet the court went against the majority of Americans and against the status quo in that decision.
The principle is exactly the same in the case of Prop. 8 as it was with interracial marriage: a certain class of citizens should not be denied the right to marry simply because they were born different from the majority. It looks doubtful, though, that the current court will be as brave in asserting equal rights as were their counterparts back in ’67.