This week, the
Today, the justices will consider the federal
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
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
Seeking more solid ground for their skeptical view of same-sex marriage, Chief Justice