Supreme Court Puts California’s Proposition 8 In The Cross Hairs

Today's hearing on Proposition 8 left some wondering if the Court may end up punting the case away.

Supreme Court Building

Today, the Supreme Court heard oral argument in Hollingsworth v. Perry, the case challenging the Constitutionality of California’a Proposition 8, and by time time argument was over many were left with the impression that the Justices were looking for a way to rule narrowly on the case:

As the Supreme Court on Tuesday weighed the very meaning of marriage, several justices seemed to have developed a case of buyer’s remorse about the case before them. Some wondered aloud if the court had moved too fast to address whether gay and lesbian couples have a constitutional right to marry.

“I just wonder if this case was properly granted,” said Justice Anthony M. Kennedy, who probably holds the decisive vote.

Justice Sonia Sotomayor said there may be value in letting states continue to experiment. “Why is taking a case now the answer?” she asked.

Addressing the merits of the case during the first of two days of arguments on same-sex marriage, Justice Kennedy voiced sympathy for the children of gay and lesbian couples.

“There’s some 40,000 children in California that live with same-sex parents,” he said, as the justices debated the state’s Proposition 8, which banned same-sex marriage. “They want their parents to have full recognition and full status. The voice of those children is important.”

But Justice Kennedy also spoke of uncertainty about the consequences for society of allowing same-sex marriage. “We have five years of information to pose against 2,000 years of history or more,” he said, speaking of the long history of traditional marriage and the brief experience allowing gay men and lesbians to marry in some states.

Justice Samuel A. Alito Jr. said the court should not move too fast.

“You want us to step in and assess the effects of this institution, which is newer than cellphones and/or the Internet?” he said.

Many of the questions directed to Charles J. Cooper, a lawyer for opponents of same-sex marriage, concerned whether there was any good reason to exclude same-sex couples from the institution.

Justice Elena Kagan, for instance, asked how letting gay and lesbian couples marry harmed traditional marriages. “How does this cause and effect work?” she asked.

Mr. Cooper said that “the state’s interest and society’s interest in what we have framed as ‘responsible procreation’ is vital.”

Theodore B. Olson, representing the ban’s challengers, said California’s ban on same-sex marriage “walls off gays and lesbians from marriage, the most important relationship in life.”

Several justices also challenged the notion that procreation was the key to the state’s interest in marriage. Justice Stephen G. Breyer asked Mr. Cooper about sterile opposite-sex couples. “There are lots of people who get married who can’t have children,” he said.

Justice Kagan raised the question of a man and a woman over 55 years old seeking to get married, despite the fact that they would not be able to have children. Mr. Cooper agreed that the court could not constitutionally ban such marriages, but returned to the hazards of a “redefinition” of marriage.

Justice Antonin Scalia remarked wryly, “I suppose we could have a questionnaire at the marriage desk asking, ‘Are you fertile?'” When Justice Kagan noted that people were frequently asked about their age by the government, Justice Scalia joked about Senator Strom Thurmond, who fathered in his 70s and served in the Senate until age 100.

Mr. Cooper avoided a direct attack on same-sex marriage, which has rapidly gained public support in recent years. Instead, he argued that there was already under way a lively, democratic debate over “the age-old definition of marriage” and suggested that the court should not interrupt it. The court should not, he said, “put a stop to this democratic debate” over what he called “an agonizingly difficult issue.”

There was also an extended discussion of a preliminary issue: whether the plaintiffs in the case actually have legal standing to challenge the state court ruling that overturned Proposition 8, the ballot initiative banning same-sex marriage.

Seconds into the morning hearing, as Mr. Cooper began his argument, Chief Justice John G. Roberts Jr. cut him off and asked him to address the standing issue. It could prove a crucial question, since the court could decide that they have no standing and effectively leave in place a state ruling striking down the same-sex marriage ban.

Mr. Olson said that the plaintiffs did not have standing. But his main argument was that Proposition 8 “walls off gays and lesbians from marriage,” which both sides in the case recognize as a fundamentally important institution. Mr. Olson said that a ban on same-sex marriage would have the effect of “labeling their most sacred relationship” as “not O.K.

As I noted during the Obamacare cases, trying to draw conclusions about what a Court might do from oral argument is often a mistake. Sometimes, Justices ask questions for the purpose of testing some portion of the legal theories behind the case. Sometimes, indeed quite often I’d suggest from my own experiences, they are playing “devil’s advocate,” asking a question that they don’t necessarily agree with in order to elicit from counsel an idea of just how far their legal theory could be stretched. Sometimes, they’re using the questions to engage in some intellectual sparring with one of their fellow Justices. Before any of these cases are argued in open court, these Justices and their clerk’s have read hundreds (if not thousands) of pages of legal briefs from the parties to the case, the Solicitor General if his/her opinion has been requested, and outside groups that may have filed amicus briefs. It’s usually the case that most Justices will have walked into the Courtroom that day with at least some indication in their mind of which way they are leaning in the case. Oral argument can influence that opinion, but it’s hardly the chief influence. Finally, as we learned just last year, after the arguments are over and the Justices are writing their opinions, someone can change their mind and send the case off in an entirely different direction from the one that seemed apparent after oral argument was over. For these reasons, it’s best to take all this analysis of what happened in Court today with a grain of salt.

Over at SCOTUSBlog, Tom Goldstein seems to think that the fate of the Proposition 8 case is already clear:

Much will be written about the Proposition 8 oral argument.  The bottom line, in my opinion, is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.

Several Justices seriously doubt whether the petitioners defending Proposition 8 have “standing” to appeal the district court ruling invalidating the measure.  These likely include not only more liberal members but also the Chief Justice.  If standing is lacking, the Court would vacate the Ninth Circuit’s decision.

The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy.  For the more liberal members of the Court, there was no clarity on how broadly they would rule.

But Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail.  He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new.  He also noted the doubts about the petitioners’ standing.  So his suggestion was that the case should be dismissed.

If those features of the oral argument hold up – and I think they will – then the Court’s ruling will take one of two forms.  First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing.  That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8.  Another case with different petitioners (perhaps a government official who did not want to administer a same-sex marriage) could come to the Supreme Court within two to three years, if the Justices were willing to hear it.

Second, the Court may dismiss the case because of an inability to reach a majority.   Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him.  Others on the left may agree.  That ruling would leave in place the Ninth Circuit’s decision.

The effect of this type of decision would be that Proposition 8 would be overturned and same-sex marriage would be legal in California. A tremendous development indeed considering that we’re talking about the nation’s most populous state, but a far cry from the full-throated endorsement of same-sex marriage as a Constitutional right that many advocates are hoping for. In the end, though, I would still say that it counts as a victory, especially if combined with a ruling that strikes down  Section Three of DOMA, and the public movement toward greater acceptance of same-sex marriage would no doubt pick up steam as a result. At the same time, though, it seems as though Goldsteain is really going out on a limb here. Yes, it’s true that Kennedy was chief among those Justices expressing doubts about whether the parties defending Proposition 8 had standing to pursue the appeal, but we don’t know what might happen behind closed doors between now and June. It’s entirely possible that Kennedy could be persuaded to join the Court’s liberal wing in a broader decision, although I think it’s unlikely we’d see a ruling with nationwide implications.

Goldstein’s colleague Lyle Denniston has more observations about Kennedy’s comments and what they might mean:

The legal consequences of avoiding a ruling on the constitutionality of Proposition 8 would vary sharply, depending upon the route the Court chose to that outcome.  If the case were dismissed on the theory that the grant of review was a mistake, that would mean that the Ninth Circuit’s California-only decision would become final and fully effective, that court would remove the temporary order blocking marriages, and same-sex couples could resume getting married in the state.

In that event, the Circuit Court decision would not have the Supreme Court’s specific approval, so it would not mean anything beyond California because no other state that has allowed same-sex marriage has taken it away, and that is all that the Circuit Court found to be unconstitutional.  For the time being, nothing would happen in the Supreme Court on the constitutionality of denying gays and lesbians a right to marry.

If, however, a majority of the Court were to conclude that the backers of Proposition 8 did not have “standing” under Article III to pursue their appeal to the Supreme Court, it almost certainly would mean that they also lacked the right to have pursued an appeal to the Ninth Circuit.  As a result, the Circuit Court’s California-only decision would itself be wiped out.  It would then become an issue, likely to be hard fought, on whether the District Court ruling striking down Proposition 8 on broader grounds would be reinstated, or not.  The Supreme Court probably would not have decided the fate of the District Court ruling in finding a lack of “standing” for the proponents before the Justices.

As I’ve noted before, the District Court’s ruling in this case was far broader than the 9th Circuit’s. It attacked the entire idea of laws against same-sex marriage, finding them a violation of the Equal Protection Clause of the 14th Amendment on the ground that there is no rational basis to exclude gays and lesbians from getting married. While Judge Walker’s opinion would not have any force or effect outside of California, it would be the final ruling in the case and would undoubtedly be cited as persuasive precedent in cases brought in other states against their bans on same-sex marriage. In that respect, a ruling on standing that lets the District Court ruling stand as the final word could end up being just as radical as the far reaching decision that same-sex marriage advocates want from the Court.

Some might wonder why the Court would essentially punt this case if it had already agreed to take it. After all, much time and energy could have been saved by simply refusing to take the appeal. The reason is that only four Justices are required to agree in order to take a case on appeal. We’ll never know which four Justices made the decision in this particular case, but when they did so they likely didn’t think that the standing issue was going to be a big deal. Now, presented with the job of trying to hammer out a majority, dismissing the case on standing grounds may be the best option they have. We’ll find out sometime in June.

If you want to listen to the oral arguments, you can do so via the Court’s website. Additionally, I’ve embedded a copy of the transcript below:

Hollingsworth v. Perry Transcript by dmataconis

FILED UNDER: Law and the Courts, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. OzarkHillbilly says:

    We’ll never know which four Justices made the decision in this particular case, but when they did so they likely didn’t think that the standing issue was going to be a big deal.

    I wonder to what extent they are getting cold feet? They do not want to put their names to what could be the next Dred Scott?

  2. legion says:

    Predicting Justices is notoriously tricky, but for the strict legal aspects, I think it comes down to this:

    Justice Elena Kagan, for instance, asked how letting gay and lesbian couples marry harmed traditional marriages. “How does this cause and effect work?” she asked.

    If there’s no injury, if you can’t show actual harm, then every remaining argument against same-sex marriage basically boils down to: “I don’t like it”. That’s not a very sound footing to set legal precedent on.

  3. JKB says:

    @legion:

    Seems like this will keep the law professor types chattering for a good long while. I just read, excerpted questions and answers that spin in a different direction. Not to mention the SG getting backed into stating the official US government position as being simply that if you permit civil unions it is unconstitutional to not permit marriage but that leaves those states that haven’t permitted civil unions untouched.

    This question is nice but didn’t get a good answer:

    Justice Sotomayor asks Ted Olson (p. 46):

    Mr. Olson, the bottom line that you’re being asked — and — and it is one that I’m interested in the answer: If you say that marriage is a fundamental right, what State restrictions could ever exist? Meaning, what State restrictions with respect to the number of people, with respect to — that could get married — the incest laws, the mother and child, assuming that they are the age — I can — I can accept that the State has probably an overbearing interest on — on protecting a child until they’re of age to marry, but what’s left?

  4. stonetools says:

    What seems clear is that the LEAST LIKELY DECISION will be an overruling of the Ninth Circuit decision and a reinstatement of the ban against gay marriage. Even Scalia doesn’t seem to want to go there, and whither Scalia goes,( or doesn’t go) so too do Alito and Thomas.
    Looks to me that same sex marriage will remain legal in California. That’s victory for SSM advocates, no matter what the grounds of the decision.

  5. OzarkHillbilly says:

    via TPM, Scalia:

    “If you redefine marriage to include same-sex couples,” he said, “you must permit adoption by same-sex couples, and there’s considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not. Some states do not permit adoption by same-sex couples for that reason.”

    “I don’t think we know the answer to that,” he said. “Do you know the answer to that, whether it harms or helps the child? … That’s a possible deleterious effect, isn’t it?”

    I don’t know Justice, but I am pretty sure that being raised by you harms them. So, are you saying the state should decide who gets to be parents and who does not?

  6. Dave Schuler says:

    I took Justice Kennedy’s remarks, in particular, as wistful wishful thinking. The SCOTUS doesn’t have the alternative of allowing the matter to be decided through the democratic process. It will be decided in the courts.

    Somewhat uncomfortably similar to Bush v. Gore, the only question is in which court it will be decided.

  7. Gustopher says:

    The issue of who has standing to sue to ensure a proposition is enforced might actually be the more interesting argument.

    The vile, hateful proposition was passed by the vile, hateful people of California, but the state government is not defending it. Who should/can defend this vile, hateful proposition?

    My eyes are on DOMA, where standing is a lot clearer.

  8. stonetools says:

    @JKB:

    Isn’t the answer clear, really? There’s a compelling state interest in forbidding incest and child marriages, based on well known scientific and public policy grounds. There is no such compelling state interest in forbidding in consenting homosexual couples from marrying-at least none that anti-SSM advocates have been able to present. Now if you think can articulate a compelling state interest, then please proceed, sir.

  9. legion says:

    @JKB:
    @stonetools:
    Very interesting points. Personally, i think that particular rabbit hole leads to the argument for getting the government out of the “marriage business” altogether.

  10. DRE says:

    After reading the transcript (and quite a few briefs) it seems to me that the decision should, and probably will, be decided by the following questions.

    Is homosexuality an innate characteristic of an individual?

    If so, a same sex marriage ban is a marriage ban applied to those individuals because of that characteristic, and thus is subject to strict scrutiny. (Alternatively, marriage is not directly related to sexual relationships, in which case all the logic of a same sex marriage ban is gone.)

    If not, then the argument that part of the government interest in marriage is discouraging potential procreation outside of marriage is still served by allowing gay marriage, since the individuals being married would be potentially fertile with other partners (Cooper’s response to old heterosexual couple question).

    Does California Law pass strict scrutiny?

    Given the specifics of other California laws and the interests proffered by defenders of the law, it is very clear that California has not met the strict scrutiny requirement (Compelling state interest that cannot be achieved otherwise).

    I expect the court to find that same sex marriage bans are subject to strict scrutiny, and that the California law fails. Other states would still be free to maintain such bans, if they could meet the strict scrutiny burden.

  11. stonetools says:

    @legion:

    This has been discussed before on OTB. Since marriage is inevitably going to involve property, contract, tax, and inheritance laws, government is ALWAYS going to be in the marriage business .Talk of unfettered love and romance is nice and all, but marriage was always much more than that.

  12. DRE says:

    @JKB:

    If you say that marriage is a fundamental right, what State restrictions could ever exist?

    You are right that this question did not get a good answer but I have one. It is easy to use sociological research to show that there are many benefits to having stable family units. There are also many benefits to limiting sexual promiscuity. Having an institution of marriage that allows two adults to form a permanent bond with rights and responsibilities, including a partnership in raising children and an expectation of sexual fidelity, provides the basis for this unit, which should be considered a fundamental right. Limiting the union to two adults does not deny anyone access to this institution. The requirement that the two adults be of opposite gender does, unless you are willing to deny the existence of homosexual individuals.

  13. HarvardLaw92 says:

    @DRE:

    I very much doubt that they will be willing to extend strict scrutiny review. That said, it’s not much of a distinction. These bans don’t even, IMO, pass rational basis review. The most likely standard to be applied, assuming they don’t punt based on jurisdiction (which, after listening to the oral I am exceedingly worried about) will be intermediate scrutiny.

  14. DRE says:

    @Gustopher:

    The issue of who has standing to sue to ensure a proposition is enforced might actually be the more interesting argument.

    I think that this is less interesting that it appears. I believe that the California Supreme Court got the issue wrong, but I expect SCOTUS will accept their decision, since it is specific to California.

  15. stonetools says:

    After reading several blogs, it seems that Roberts, Scalia, and Alito were more receptive ton the Prop 8 proponents’ arguments than SCOTUS blog indicated. Still, I’m doubling down and ( clarifying) my prediction:6-3 in favor of upholding the Ninth Circuit Division. This overturns the ban on same-sex marriage, but on narrower grounds than the District Court decision. I now see Kennedy writing for majority, though.
    I also think we will see a very strong statement from liberals advocating that all state marriage bans should be struck down-the so called 50 state solution. None of the liberals seemed to inclined to accept that there was a rational basis for the state discriminating between heterosexual and homosexual couples.

  16. JKB says:

    @DRE: including a partnership in raising children and an expectation of sexual fidelity, provides the basis for this unit,

    We allow marriage when children are not conceivable. As well as the raising of children outside such partnerships. We certainly do not enforce sexual fidelity even when their is an expectation, we permit open marriages to stand where sexual fidelity is not expected.

    Seems to me, in today’s environment, no one has a good definition of marriage anymore or a clear argument as to why the arrangement receives privileged consideration under the law. If we were to define marriage and the state’s interest in privileging it, we could then examine the reasoning to see if any of it hinged on a male/female bonding. Historical ideas of marriage do not inform as we’ve long ago broken the requirements expected back then.

  17. @DRE:

    Your first question is not a legal one and not one within the proper purview of SCOTUS or any other Court

  18. rudderpedals says:

    Someone check the odds at Intrade. Oh

    If dismayed by oral args think back to the premature mass Obamacare burial after a certain Justice deployed his asparagus “argument”. Never say die

  19. DRE says:

    @Doug Mataconis:

    Of couse it is a legal question, although perhaps not worded that way. How about this. Is sexual preference a suspect classification? In order to be a suspect classification it can’t be a choice a person make. As Mr Cooper argued:

    It — it does not — it — it does not qualify as an accident of birth, immutability in that — in that sense.

  20. stonetools says:

    @DRE:

    To be honest, science has not precisely determined the nature of homosexuality. One scientist I know put it this way:
    “Science has been unable to determine whether homosexuality is a mere preference, a weakness to be guarded against, or simply part of normal human variation. ”
    While I think the evidence is mounting in favor of (3), we are not where we can say the issue is proved to a scientific certainty.
    Luckily, we don’t have to answer that question to conclude that there is no rational basis for discriminating between homosexual and heterosexual couples who want to marry. One of the results of the legal process is that it has made clear that opponents of SSM can present no rational arguments in favor of their position. They have so totally failed to do so that even conservative justices who are inclined to rule against SSM have been unable to come up with a basis to rule against SSM. Even today, Scalia had to reach for the “possibility” than children might be harmed by being raised in same sex households. That is pretty weak tea(and is itself contradicted by the consensus of scientific opinion).

  21. DRE says:

    @JKB:

    We allow marriage when children are not conceivable. As well as the raising of children outside such partnerships. We certainly do not enforce sexual fidelity even when their is an expectation, we permit open marriages to stand where sexual fidelity is not expected.

    I didn’t say that the state had any interest in requiring those things, just that it had an interest in an institution that allowed them, or was conducive to them. The question is about limitations that are permissible. Allowing more than two adults changes the fundamental dynamic, complicates the legal assumptions involved in marriage, and eliminates the exclusive partnership, especially in the traditional case of one person with multiple spouses, rather than a group or three or more who all enter a marriage together.

  22. Console says:

    @JKB:

    Meh, it’s a pointless question.

    No right is absolute. Believing I should be able to post my political opinions here without government censorship doesn’t magically mean I have to come up with an argument for allowing obscenity or death threats. The constitutional right to vote somehow doesn’t seem to apply to felons.

    Likewise, the people that were for interracial marriage weren’t on the hook for having the come up with arguments about same-sex marriage. Nor should people for same-sex marriage have to invent some logical limitation on marriage rights.

    Laws exist with rationales unto themselves. The idea that the are perfect points of logic that flow from one to another in an immaculate web isn’t remotely true. Insomuch as we try to pretend they are for the sake of courtroom semantics… like I said, pointless.

  23. Just Another Ex-Republican says:

    @JKB: Well, it didn’t get a good answer according to the NRO. I thought Olsen’s answer made perfect sense. Olsen said:

    ” …if a State prohibits polygamy, it’s prohibiting conduct. If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status. It’s selecting them as a class, as you described in the Romer case and as you described in the Lawrence case and in other cases, you’re picking out a group of individuals to deny them the freedom that you’ve said is fundamental, important and vital in this society, and it has status and stature, as you pointed out in the VMI case.”

    The NRO calls that an “untenable distinction between status and conduct” and dismisses it. The root of the issue boils down to if you believe homosexuality is a choice or not. If you think it is not a choice, then Olsen’s answer is perfectly reasonable and far from untenable. The state can still prohibit polygamy because it’s preventing a behavior available to all (like the overwhelming majority of laws do); whereas singling out a group or class of people and denying them what is otherwise a fundamental right because of a physical trait beyond their control would be discriminatory.

    Of course, if you think homosexuality is a choice then you already believe the behavior is available to everyone and the state can make it illegal. Personally I think the idea that’s it’s a choice is ridiculous, but that just shows my own bias (the opposite of the NRO’s). Whether his answer was reasonable or “untenable” depends entirely on what position you’ve (or in this case, the NRO reviewer) already taken on the underlying question of if it’s natural or a choice.

  24. Mikey says:

    @Just Another Ex-Republican:

    The NRO calls that an “untenable distinction between status and conduct” and dismisses it.

    Of course they do. They have to eliminate the distinction or their whole argument falls apart, and they’re left with the basis of every argument against same-sex marriage: “we don’t want to allow gay marriage because we don’t think gay people should be treated the same as straight people.”

  25. An Interested Party says:

    Can anyone make a rational argument against SSM? Oh, and “gays are icky” doesn’t count as a rational argument…

  26. JKB says:

    @An Interested Party:

    You are asking the question imprecise. The question should be can a rational argument be articulated why members of the same sex, regardless of sexual orientation should not be permitted to marry in the eyes of secular law, i.e., the State?

    The hang up on sexual orientation doesn’t really inform the matter since it is of no public interest if said same sex individuals engage in lawful behavior in the privacy of their home or even in public. So as you say, “gays are icky” isn’t really a rational argument.

    But neither can the decision only permit homosexuals to marry members of the same sex as that would be discriminatory against heterosexuals. Homosexuals already being afforded the “right” to marry someone of the opposite sex just as heterosexuals may. Not to mention, the potential issue of children from the married partners no longer being a functional criteria for lawful marriage among opposite sex members.

  27. An Interested Party says:

    So as you say, “gays are icky” isn’t really a rational argument.

    And yet, for so many who are opposed to SSM, once all their words are boiled down, this is basically all they have as an argument…

    But neither can the decision only permit homosexuals to marry members of the same sex as that would be discriminatory against heterosexuals.

    I did ask for a rational argument…perhaps you aren’t capable of providing one…

  28. JKB says:

    I offered no argument against ssm. I simply pointed out that is limiting to simply consider it in the context of homosexual relationships. If we are to permit ssm, we will permit ssm regardless of sexual orientation. Also, that there is not reason to limit the provision of state sanction of ssm due to the likelihood that the individuals might engage in some lawful intimate activity that they may engage in even when not married.

    So if you wish to remove the “icky gay factor” then simply consider two same sex heterosexuals establishing a household. Perhaps with children in the household. Is there an interest in the state permitting such individuals to enter into marriage with its rights, duties, and benefits? Would such a marriage provide a more emotionally secure environment for the children of the household? If the answer is yes, then is there some reason that the same sex adults may engage in lawful intimate activities alter the rationale in some way other than discrimination?

  29. Mikey says:

    @JKB: I’m reminded of the comedy film “I Now Pronounce You Chuck and Larry” in which two straight men pretend to be gay so they can get a domestic partnership and qualify for benefits from their employers.

    In reality, though, I think it’s an interesting point, but I’m not sure how relevant from a legal point of view. I mean, we don’t send state officials around asking married couples if they actually have sex, or even love each other. And sometimes they love each other but don’t have sex.

    Also, the current rate of divorces notwithstanding, we still consider a marriage as a lifetime commitment, and I am not sure there would be any significant number of people who would want to enter into a legal status of “roommate for life.”

  30. Scott O says:

    Suggested headline for the next article on this case:

    Scalia Considering Gay Marriage

  31. JKB says:

    @Mikey: I mean, we don’t send state officials around asking married couples if they actually have sex, or even love each other.

    Precisely. As far as the State is concerned, marriage is an economic entity. Many of the traditional characteristics have been lost, such as the wife subordinate to the husband, legal action against infidelity, estate claims enforceable by biological offspring conceived with others, the public condemnation of sexual relations outside the marriage, etc. In reality, as far as the State is concerned, what has love got to do with it?

    So the question is, what is marriage, as an entity to be privileged by the State? And why is it permissible for the State to discriminate on the basis of gender whom a citizen can marry.

    And it is a gender bias. Heterosexuals and homosexuals are neither privileged over the other in whom they can marry, both are restricted to someone of the opposite gender. Granted, homosexuals may find the discrimination more acute since they desire to form closer partnerships with those of their same gender. But the matter remains that sexual orientation is not a factor in the State’s denial of marriage benefits to individuals seeking to form same sex partnerships; the legal genders of the two individuals is controlling.

  32. Mikey says:

    @JKB:

    But the matter remains that sexual orientation is not a factor in the State’s denial of marriage benefits to individuals seeking to form same sex partnerships; the legal genders of the two individuals is controlling.

    Except that’s not entirely true, because the sole motivation of those in opposition to same-sex marriage is to prevent the state granting any legitimacy whatsoever to unions in which same-sex partners love each other. All the appeals to tradition and arguments from religion boil down to that.

    And there really isn’t any reasonable expectation that same-sex marriage would occur otherwise (see my comment above re: “roommate for life”).

  33. JKB says:

    @Mikey:

    You are speaking about the motivations of the opponents. I was speaking of the actual body of law that bans marriage of same gender individuals regardless of sexual orientation.

    You might try framing the promotion of same-gender marriage as a gender discrimination issue and then let the opponents start bringing up their supposed ideas of what might happen in the marriage bed.

    It occurs to me, don’t we permit transexuals to marry based on their legal gender? Do we require the dissolution of the marriage if someone changes their gender post-nuptials? What about after the birth of children into the marriage? Does the state demand two parent families be broken up if one parent has a gender change?

  34. Mikey says:

    @JKB:

    You are speaking about the motivations of the opponents. I was speaking of the actual body of law that bans marriage of same gender individuals regardless of sexual orientation.

    My position is: I don’t think we can divide the two, because absent the former, we wouldn’t have the latter. Because whatever the body of law says, it only exists because of the motivation I stated.

    I agree with you second point insofar as I think it might be easier to address if it were framed as a gender-discrimination issue, but it didn’t spring from gender discrimination, it sprung from discrimination based on sexual orientation. So that’s the route we have to take.

  35. JKB says:

    @Mikey:

    DOMA and Prop 8 may have been motivated by a desire to prevent gays from marrying but not the large body of marriage law that evolved over human history. Yet, common law limits marriage to partners of opposite sex which discriminates based on gender. Does that discrimination still have a justification? The fact that few same gender heterosexuals might wish to marry does not justify the discrimination. It would, however, inform why the matter was not an issue until the societal legal recognition of same gender homosexual relationships.

  36. Mikey says:

    @JKB: I think the big difference now is the tidal shift in attitudes. When 80% of Americans between the ages of 18 and 30 believe same-sex marriage should be allowed, that’s tremendously significant, and in my view (and that of many others) means the discrimination isn’t justified. If marriage is a societal institution, the society gets to define it, right? And if 80-90% of the society says “SSM is OK” then it should be permitted.

    Eventually, 18-30 will be 28-40 and 38-50 and probably everyone in all the younger demographics as well. Check out this from Nate Silver: How Opinion on Same-Sex Marriage Is Changing, and What It Means

  37. JKB says:

    @Mikey: And if 80-90% of the society says “SSM is OK” then it should be permitted.

    So your saying if a majority opposed SSM then it would be okay to prohibit it? That hardly aligns with discrimination claims before the court.

    But it does inform that even if found non-discriminatory in the Court, SSM will still eventually be permitted through the legislatures.

  38. Mikey says:

    @JKB:

    So your saying if a majority opposed SSM then it would be okay to prohibit it?

    No, I think the Constitutional protections against discrimination would still apply. I’m just pointing out why I think the time has come to disregard arguments from “it’s always been this way.” And also that this is an area in which legislation has lagged behind.

    But it does inform that even if found non-discriminatory in the Court, SSM will still eventually be permitted through the legislatures.

    I agree–I think even if SCOTUS allows Prop 8 and DOMA to stand, it would probably be only a couple of election cycles until SSM would be legal in nearly every state. And at that point there would be huge pressure on Congress to get rid of DOMA.

  39. Tyrell says:

    Many around here who are pastors and church leaders are worried that they would be forced into ssm ceremonies, but churches, in my opinion, will still have the authority to decide this. It has always been that way and will not change. At our church, request for marriage goes to the church leadership board through the pastor for approval. While usually approved, sometimes they are not. The church retains the right to disapprove for any reason.
    This is one reason that government should get out of the marriage deal completely and just recognize a legal relationship exists between two people.

  40. anjin-san says:

    Many around here who are pastors and church leaders are worried that they would be forced into ssm ceremonies

    If they think of themselves as leaders, perhaps they should take the trouble to become better informed.

    I am not willing to cede a single American to second class citizenship because of ignorance.

  41. matt bernius says:

    @Tyrell:
    And to be clear, even if the Supreme Court made the most sweeping judgement in favor of same sex marriage, it is not within their power to force recognized churches to perform ceremonies — just as they couldn’t force a given church to perform interracial marriages.

    So that particular concern is, as @anjin-san suggests, not rooted in any reality.

  42. DRE says:

    @JKB:

    The hang up on sexual orientation doesn’t really inform the matter since it is of no public interest if said same sex individuals engage in lawful behavior in the privacy of their home or even in public.

    I agree that sexual orientation should not be an issue in the definition of a valid same sex marriage if same sex marriage is recognized. However it is the existence of sexual orientation combined with the idea of an exclusive permanent intimate partnership in marriage that creates a conflict with equal protection. You can argue that same sex marriage bans fail on a rational basis test, regardless of sexual orientation, but that is much more questionable, since it is certainly rational to believe that sexual relationships outside of a marriage decrease the likelihood of the marriage being permanent.