The Supreme Court of the United States heard oral arguments in the Proposition 8 case on Tuesday, the first time it has ever directly addressed the issue of same-sex marriage. Here are 5 key quotes and the issues they raised that give us insight into how the court’s judgment might be formed.
1) Are There Any Other Grounds For Discriminating Against Gay People?
Justice Sonia Sotomayor prodded the Prop 8 defense to expand on how far reaching discrimination on grounds of sexual orientation should extend, asking:
“Outside of the marriage context, can you think of any other rational basis reason for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the government could make? Denying them a job, not granting them benefits of some sort, any other decision?”
Cooper for the defense replied “I cannot,” and said he didn’t have anything else to offer in that regard.
This raises the question, why should discrimination in marriage stand? This suggests that at least for the more liberal and centrist judges, a higher threshold of evidence would be needed to sway them that this kind of discrimination should be given special protection.
2) Is Proposition 8 Suspect Gender-Based Discrimination?
Justice Kennedy asked the interesting question:
“Do you believe this [Proposition 8's discrimination] can be treated as a gender-based classification?”
This is interesting because neither those pressing for the end to Proposition 8 or the constitutional amendment’s defenders have pursued the question of gender discrimination, but Justice Kennedy said that he had been “struggling” with the idea.
Can we expect a ruling on grounds of gender? This is unlikely to form a backbone to any argument, but it is interesting that the court would explore gender discrimination, which is already recognized as an area of concern and given closer scrutiny, hinting that even if the Supreme Court is not yet ready to accept protection for gay people, there may still be scope to consider the discrimination this group faces under existing gender discrimination provisions.
3) Who Qualifies For Marriage if Procreation is the Threshold?
The Prop 8 defense has maintained that so-called traditional marriage should be preserved by virtue of a supposed government interest for encouraging procreation.
Several of the justices were leery of this idea, with Associate Justice Elena Kagan asking:
“Suppose a state said that, Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?”
Mr. Cooper for the Prop 8 defense went on to argue that at least one out of that couple would still be fertile.
This provoked laughter from several of the judges. The supposed procreative incentive marriage brings has been a central argument for those supporting Proposition 8 but, as with the lower courts, it appears to have found little favor here.
4) Yes, Scalia is Still a “Textualist”
In case you thought only Cooper for the Prop 8 defense got the tough questions, Justice Scalia was ready to give Ted Olson representing same-sex couples a hard time with his “The Constitution is dead, dead, dead,” approach when he asked:
“When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the 14th Amendment was adopted?”
Olson responded that this was a gradual process. Scalia hit back, how was he supposed to rule on that without a firm benchmark?
Coming into this case, we already knew which way Scalia was likely to vote – he has consistently shown a staunch opposition to homosexuality — but this appears to suggest he will take the line that there is no right to equal protection for homosexuals because he will argue they are not a protected class and never have been. He has previously aped the slippery slope argument, that there is no substantive difference between gay marriage and bestiality. We can expect this may also feature.
5) The Supreme Court Needs a Crystal Ball
Justice Alito opined that marriage equality is a (arguably) new phenomenon and that its impact is yet unknown:
“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? I mean we — we are not — we do not have the ability to see the future.”
While this may strike as a point in favor of the pro-Prop 8 side, that we should maintain the status quo, several of the Justices appeared to indicate that they believed it would be better to decline to rule in this case and let the Ninth Circuit’s ruling striking down Proposition 8 stand.
A deference toward allowing individual states to decide the issue was, at turns, argued by both the Prop 8 defense and those arguing for equality, indicating this is a door still firmly open.
Prop 8: Which Way Will the Supreme Court Rule?
It’s almost impossible to say exactly how the court will rule in this case, but we can say that because Justice Kennedy has long been thought the swing vote, his comments during today’s arguments may have particular weight.
From this we can unpack that, if we do get a ruling, it seems likely a more narrow decision will be issued that will allow the Ninth Circuit’s ruling to stand and Proposition 8 be struck down in California, but with little wider impact.
This would not be the blockbuster ruling to challenge all same-sex marriage bans that advocates might have wanted, but it would still be a significant gain for the gay rights landscape.
A judgment is expected in June. Wednesday will see the court hear arguments in Windsor v. United States, the case challenging the federal Defense of Marriage Act (DOMA).
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