Proposition 8, the law banning same-sex marriage in California, got its day in court today — the Supreme Court, that is. Charles Cooper argued that the group he represents is the right one to advocate for keeping the law and that the definition of marriage should not change. Ted Olson took the opposing side, representing a gay couple and a lesbian couple who want to be able to marry in their home state.
Though the topic was serious, some of the comments from Justices drew laughter from the Court.
Here are some of the best moments from the arguments today.
Supreme Court Justice Anthony Kennedy asked Cooper if marriage could be considered a “gender-based classification.”
Cooper replied, “Virtually every appellate court, state and federal, with one exception, Hawaii, in a superseded opinion, has agreed that it is not a gender-based classification, but I guess it is gender-based in the sense that marriage itself is a gendered institution, a gendered term, and so in the same way that fatherhood is gendered more motherhood is gendered, it’s gendered in that sense.
“But we — we agree that to the extent that the classification impacts, as it clearly does, same-sex couples, that — that classification can be viewed as being one of sexual orientation rather than -¬”
Justice Sonya Sotomayor jumped in then.
“Outside of the -¬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?” she asked. “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?”
“Your Honor, I cannot. I do not have any — anything to offer you in that regard,” Cooper said.
Supreme Court Justice Elena Kagan stopped Cooper to be sure she had a handle on his case against legalizing gay marriage.
“Mr. Cooper, could I just understand your argument. In reading the briefs, it seems as though your principal argument is that same-sex and opposite — opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples cannot, and the State’s principal interest in marriage is in regulating procreation. Is that basically correct?” she asked.
“I — Your Honor, that’s the essential thrust of our — our position, yes,” Cooper replied.
Justice Antonin Scalia gave a suggestion for what backlash could come from legalizing gay marriage when Cooper seemed stalled.
“Mr. Cooper, let me — let me give you one — one concrete thing. I don’t know why you don’t mention some concrete things,” Scalia said. “If you redefine marriage to include same-sex couples, you must — you must permit adoption by same-sex couples, and there’s -there’s considerable disagreement among — among sociologists as to what the consequences of raising a child in a — in a single-sex family, whether that is harmful to the child or not. Some states do not — do not permit adoption by same-sex couples for that reason.”
“If you are over the age of 55, you don’t help us serve the government’s interest in regulating procreation through marriage. So why is that different?” Justice Kagan asked Cooper.
“Your Honor, even with respect to couples over the age of 55, it is very rare that both couples — both parties to the couple are infertile, and the traditional –,” Cooper started.
Kagan interrupted. “No, really, because if the couple — I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage,” she said, getting laughter from the crowd.
A short time later, Scalia followed up with a joke of his own.
“I suppose we could have a questionnaire at the marriage desk when people come in to get the marriage — you know, Are you fertile or are you not fertile?” he suggested. “I suspect this court would hold that to be an unconstitutional invasion of privacy, don’t you think?”
At the start of his time, Olson tried to side-step a question about standing that was posed to Cooper at the beginning, but to no avail.
“I know that you will want me to spend a moment or two addressing the standing question, but before I do that, I thought that it would be important for this court to have Proposition 8 put in context, what it does,” Olson told the court. “It walls-off gays and lesbians from marriage, the most important relation in life, according to this Court, thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal, and not okay.”
But Olson got no further.
“Mr. Olson, I cut off your friend before he could get into the merits,” Chief Justice John Roberts told the lawyer.
“I was trying to avoid that, Your Honor,” Olson replied. The audience in the courtroom laughed at that.
Olson and Justice Scalia went head-to-head during the second half of the arguments.
“I’m curious,” Scalia began, “when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?”
“When — may I answer this in the form of a rhetorical question?” Olson replied. “When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?”
Scalia was not to be deterred.
“It’s an easy question, I think, for that one,” he said. “At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question.”
Chief Justice John Roberts questioned Olson about the meaning behind legalizing marriage, as opposed to civil unions or other arrangements.
“So it’s just about — it’s just about the label in this case,” Roberts said.
“The label is -¬” Olson began before Roberts cut him off.
“Same-sex couples have every other right, it’s just about the label,” the chief justice said.
“The label ‘marriage’ means something,” Olson began. “Even our opponents.”
Roberts broke in. “Sure. If you tell — 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.”
“And that’s it seems to me what the — what supporters of Proposition 8 are saying here. You’re — all you’re interested in is the label and you insist on changing the definition of the label.”
Olson later responded, referencing the Supreme Court Case Loving v. Va, which overturned bans on interracial marriage.
“You could have said in the Loving case, what — you can’t get married, but you can have an interracial union. Everyone would know that that was wrong,” Olson said.
Justice Kennedy expressed concerns about wading into new territory with this case.
“The problem with the case is that you’re really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that metaphor, there’s a wonderful destination, it is a cliff,” Kennedy said.
Kennedy went on, “you’re doing so in a — in a case where the opinion is very narrow. Basically that once the state goes halfway, it has to go all the way or 70 percent of the way, and you’re doing so in a case where there’s a substantial question on - on standing. I just wonder if — if the case was properly granted.”
ABC News’ Ariane de Vogue had this say about Kennedy’s quote:
While most people are taking in the momentous occasion of the gay rights arguments, some lawyers and journalists who cover the court are wondering what Kennedy meant when he said: “I just wonder if this case was properly granted. “
The legal term for that is “dismissed as improvidently granted” or DIG.
He would need four other justices to join him, and the opinion released would never explain exactly why the justices dismissed.
Dale Carpenter of the University of Minnesota law school thinks that while Kennedy could have been referring to a DIG, “he might simply have been saying we should dismiss this on standing grounds. It’s hard to know, he may not have even been sure how he is going to rule.”
Justice Samuel Alito argued the court may need more time to see how gay marriage could change the country.
“Traditional marriage has been around for thousands of years,” Alito said, echoing one of the key points in the defense against gay marriage. “Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn’t a lot of data about its effect. And it may turn out to be a — a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe.
“But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? I mean we — we are not — we do not have the ability to see the future.”