The Prop 8 Hearing: 5 Key Quotes and What They Might Mean

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).


Related Reading:

Prop 8 Decision Written For Justice Kennedy

More Than 100 Prominent Republicans Ask SCOTUS to Nix Prop 8

Prop 8 Backers Face $49,000 in Fines

Image credit: Thinkstock.


Sarah Hill
Sarah Hill4 years ago

The people of CA have spoken. They voted against allowing gay "marriage". What about the will of the people? Why do the many have to bow to the few?

Kati Patelaki
kathy P4 years ago

thanks for the info.

Shanti S.
S S4 years ago

Thank you.

Lynn C.
Lynn C4 years ago


Mari Garcia
Mari Garcia4 years ago

I don't understand why we even have to debate this issue! Equality for all!

Phoebe Devereaux
Phoebe Devereaux4 years ago

What I find so silly about this whole thing, is that back in the 1950's and 1960's people didn't wish to give these same rights to African-Americans yet now we have Martin Luther King Day. Dr. King was highly instrumental in showing that everyone, and I do mean everyone, deserves to be treated with dignity, kindness, and respect, whether their skin is a different color, or they love someone of their choosing. ALL human beings deserve love, no matter what, and I truly believe that no one has the right to tell a total stranger that they aren't allowed to love. Jesus never once said in the bible that homosexuality is wrong. OTHERS said it. He tried to teach UNCONDITIONAL love, yet the stupidity and ignorance of others wish to oppress any that think differently as they do. When it boils down to it, it's all about arrogance.
I have a close friend who is gay, and he is the most wonderful human being on earth. (next to my own fiance) I tell him that I don't care who he loves, as long as he does. The arrogance of others needs to stop, and the Supreme Court needs to wake up and learn from its own past mistakes. It's time for humanity as a whole to grow up, and quit dictating on what human being deserves unquestionable rights and which doesn't. It's not up to them.

David King
David King4 years ago

Edie Windsor had her day in the U.S. Supreme Court today—and she stood courageously for all of us. The federal government must stop discriminating against married same-sex couples. The so-called Defense of Marriage Act (DOMA) is unconstitutional, and must finally be struck down.
Three of Lambda Legal’s expert attorneys were in the courtroom to witness history. After successfully challenging the constitutionality of Section 3 of DOMA in our own case before a federal appeals court on behalf of Karen Golinski, we also submitted a friend-of-the-court brief in this case with our colleagues from GLAD. We argued that DOMA is a recipe for discrimination: It targets a particular group disliked at the time of its passage, affects important personal interests, and represents a one-time departure from usual federal policy and practice. It’s clearly a violation of equal protection guaranteed by the U.S. Constitution.
Congratulations to our colleagues at the ACLU, who did a great job representing Edie and arguing for the end of DOMA. The U.S. Department of Justice is on our side, and also argued forcefully today that it is unconstitutional for the government to treat married same-sex couples as if they were not married.
This has been an amazing week for our movement and our country. But great historical moments like these do not just happen—they are built upon years of strategic work.
When Lambda Legal won a thrilling victory at the Supreme Court 10 years ag

David H.
David H.4 years ago

While these people, usually the same ones, are happy to spend taxpayers money, and clog up court time, with their absurd notion of giving a fertilised egg full citizenship rights or, if anything, absurder notion that corporations can be people too when it comes to same sez couples they seem to forget the preamble to the Declaration of Independence. Please stop me if I go wrong here

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed".

Maybe it's just me but doesn't denying same-sex couples from marrying bear some relationship to their 'Happiness'; doesn't it deny them access to retirement or death benefits in place for marriages between a man and a woman. And, if we want to get Constitutional about it:

David H.
David H.4 years ago

Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

David H.
David H.4 years ago

If, say, Mr White works for an employer which provides retirement and death benefits which may also accrue in whole or in part to his wife (Mrs White) then it would also be incumbent on these employers to provide the same level of benefit Mr Redd and Mr Green were they in a legimatised same-sex marriage. Here, to me, it is inarguable that denying the right to marriage for same-sex couples directly, and materially, attacks the rights of citizens.

Further, to argue, as Justice Scalia does "that there is no right to equal protection for homosexuals because he will argue they are not a protected class and never have been", is. at the very least, wilfully misleading. Constitutional rights have previously been extended to take account of slavery (1865). No doubt Scalia would have argued in 1864 that blacks have no rights under the Constitution and never have had, regardless of that huge blob at the start of your Declaration of Independence where it says all that mushy, poncey stuff about "All men being created equal.

How Scalia ever got anywhere near the practice of law is completely beyond me.