Today's case in the Supreme Court, Hollingsworth v. Perry, might go away on standing grounds. That means the Court could rule that, once the state of California decided not to appeal the judgment of the trial court that Prop 8 was unconstitutional, then the proponents of Prop 8 at the initiative stage could not properly appeal to a higher court. Many of us would like this result. Marriage becomes available again in California, and the question of the right to marry under the federal constitution is left for a (hopefully much) later day. Will there be five votes for such a result? Maybe. From the questioning it looked like Roberts could rule that way, and he would only need four of the justices more sympathetic to gay rights to join him. Sotomayor and Breyer both made comments indicative of leaning against the standing of the petitioners, although Sotomayor also expressed some concern about how a law could ever be defended if the proponents could not do it.
Although all the lawyers addressed the standing question, and were prodded to do so first by Chief Justice Roberts, the majority of argument time went to the merits of the case. Is Prop 8 unconstitional? Charles Cooper, representing the Prop 8 supporters, argued that when it comes to marriage, same-sex and different-sex (he used the term "opposite-sex;" I'm sticking with the term I use here) couples are not similarly situated. This is the argument about the essence of marriage being procreation. Justice Kagan pushed him, however, asking how allowing same-sex couples to marry harms the institution of marriage. In other words, she wanted to know how excluding same-sex couples furthered the state's interest. Cooper basically that no one knows what will come from allowing same-sex couples to marry and voters should be able to proceed cautiously.
At this point, Justice Scalia brought up children. And he did not mince words. Sociologists disagree about whether being raised by same-sex couples harms children, he said, and if you redefine marriage you must permit couples to adopt children. Justice Ginsburg then jumped in to point out that in California same-sex couples can already adopt children, so that argument doesn't work in California. Scalia stuck to it, as did Cooper, saying that across all states that wasn't true. At one point I thought Scalia was making Cooper's argument for him, pointing out the alleged lack of a scientific answer to whether it harms children to be raised by same-sex couples.
When Justice Kennedy joined in, he changed the direction of this dialogue about children, pointing out the 40,000 children in California whose same-sex parents can't marry. He wanted their "voice" (his word) to be heard. Cooper conceded that was important but pointed out that the plaintiffs' expert could not say what incremental benefit there would be to the children, given that their parents can already be recognized in domestic partnerships.
The argument returned to procreation when Justice Kagan asked if the state could prohibit two 55 year olds from marrying. Cooper, of course, said no. And then came a first for me -- and I have read a lot of briefs on these issues (not all, I confess). After a series of back and forths, Cooper said that the state interest in the marriage of 55 year olds is that the institution of marriage, designed to promote fidelity and monogamy, makes it less likely that the 55 year old man -- who likely is still fertile -- will engage in irresponsible procreation by siring children outside marriage. Really. Few men outlive their fertility, Cooper said. Their marriage to a woman who cannot procreate keeps them from irresponsibly procreating with other women. Like I said, this was a new one on me.
Ted Olson argued for marriage as a fundamental right, and then got enmeshed with an insistent Scalia who wanted to know the year marriage for same-sex couples became a constitutional right. It should not have been a hard question. The answer is that it was always a right. Scalia would have scoffed at that answer, but at least it would have been an answer.
Then matters turned toward children again, with Olson pointing out that California could not base denial of marriage on anything to do with access to parenting because same-sex couples are fully recognized as parents in California (true...and it is not dependent on marriage...but no one was discussing that today!). This became part of what would later go back and forth with the Solicitor General...the possibility that states that DO grant full parenting rights, perhaps in the context of domestic partnership or civil union, can't use child-related arguments in defense of excluding same-sex couples from marriage, but states with no same-sex couple protections at all actually might be able to argue that those are constitutional because of the state's interest in the well-being of children.
Before he finished, Olson of course referred to Loving v. Virginia, and the ban that states once had on interracial marriage. Kennedy cut him off, referring to same-sex marriage as uncharted waters and noting that interracial marriage was a known quantity for hundreds of years in other common law countries.
Solicitor General Donald Virrilli represented that federal government's position, which I hate: that states may be able to ban recognition of same-sex couples but if they do recognize same-sex couples they must allow them to marry, rather than enter civil unions or domestic partnerships. Now I will say that not a single justice seemed to like this argument either. And it really makes no sense in the real world. How can it be unconstitutional to give all possible rights to same-sex couples except the word marriage and at the same time be constitutional to give no rights at all to same-sex couples? Of course I do understand the legal theory -- that denying the word marriage shows animus. And I do absolutely believe the purpose of such a label is to make same-sex couples appear as second-class couples. But, still, they are undeniably better off than the couples in Alabama who lack all legal protections and can even lose their children for being in same-sex relationships.
So the Justices hammered Verrilli on this point, making him explain this argument. Finally he said that, essentially, states that did not already respect same-sex couples raising children could argue that the children could be harmed by allowing same-sex couples to marry. Really. In another case, he suggested, the state might be able to build a record that would support "caution" because of the impact of same-sex marriage on children. To his credit, he said the state would have a heavy burden, and he certainly did not suggest the state could meet that burden, but why go there? If the government thought handing the Court a possible "8/9 state solution" (the ones with couple recognition not called marriage) would produce a good way out for justices unprepared to go the "50 state solution" route, that turned out to be a miscalculation. I don't expect a single justice to go that route.
Justice Roberts then brought up an issue I have consistently raised in these blog pages and elsewhere. He called in an "internal inconsistency" that plaintiffs say children of same-sex couples are doing great and so there is no problem extending marriage to same-sex couples and they say that Prop 8 harms children because their parents can't marry. I have always found this problematic. It is why we should not be arguing for marriage saying our children are harmed if we can't marry. We have said for decades now that children are not harmed being raised by gay and lesbian parents or same-sex couples. We cite study after study that the children turn out fine, or at least not worse than their peers with heterosexual parents. We say this constantly. We cite many studies. So, how, exactly can this be true if at the same time the children are worse off than their peers with heterosexual parents because those parents can marry? It gives me no pleasure to have an obvious opponent of same-sex marriage raise this point from the bench. It's just an obvious point that advocates boxed themselves into when they decided to conflate the well-being of children with marriage. Verrilli answered by saying marriage was stabilizing, but you see the problem. If children needs that stabilizing factor (if it is even true for same-sex couples...), then you would expect some harm to them to be visible in the years of research about their well-being. But there is no such evidence of harm. So why do they need marriage? The answer is...they don't, unless you point to specific legal consequences. But almost all of those flow from legal parentage, not marriage. We never should have gone the route of justifying access to marriage based on the well-being of children. But here we are.
One final point. Justice Breyer finds international law valuable when interpreting our constitution. In this argument, he made some references to "PACS." I'm betting most people did not get what he was saying. The court stenographer did not get it, because in the transcript the word is "pacts." But Breyer was pushing Virrilli on his argument that states could not choose couple recognition without the word "marriage," and he referred to states as having "PACS," which is a reference to what France has. "Pacte civile" is the legal term used in France for both same- and different-sex couples who enter a status that is not called marriage. It is called, colloquially, PACS. Someone will have to tell the stenographer so the official record can be corrected.... (And, fyi, the full transcript is here).
Do I have a prediction? I'll throw my hat in (and I needed one in the early morning freezing temps outside the courthouse) with those who think it will go away on standing, or some other procedural ground that avoids the merits. That will leave the constitutionally of DOMA as the only issue on which the Court rules this term. Argument on that tomorrow. Stay tuned.