Tying the Gordian Knot

by Daniel Foster
Five takeaways from the Proposition 8 oral arguments.

The Supreme Court on Tuesday heard oral arguments in Hollingsworth v. Perry, a case testing the constitutionality of California’s Proposition 8, a constitutional amendment passed by popular vote holding that “only marriage between a man and a woman is valid or recognized in California.”  Here are five takeaways from the proceedings.

Gimme Five?

The Court can rule in myriad ways. Starting from the most expansive, they could side with Judge Vaughn Walker, who made the initial ruling on the case, and hold that same-sex couples everywhere have a right to get married. They could hold with the “evolved” Obama administration that states extending certain other rights to gay couples can’t withhold the right to marry, a ruling that would apply to just a handful of states. Or they could hold with the Ninth Circuit that once California’s elected leaders extended the right to marry to same-sex couples, Prop 8 could not take it away, which would limit the scope of the ruling to California alone.

On the other hand, they could rule that the U.S. Constitution has nothing to say about marriage and that the people of California were within their rights to define marriage democratically. Or they could rule that, since the government of California itself refused to defend Prop 8, the matter is not properly before the Court, which would be less like punting than like punting on third down. The biggest question to come out of the orals is whether the Court has five votes for any of these options.

Don’t Stand So Close to Me

If you had to bet on one of these options, you’d probably pick the last one — the case being thrown out because of lack of standing. Chief Justice Roberts opened the proceedings by asking Charles J. Cooper, counsel for Prop 8’s defenders, to explain why his clients, who are not elected or appointed officials of the state of California, had standing when the Court had never granted private-citizen proponents of ballot initiatives such standing before. Other justices shared Roberts’s apparent skepticism, while Justice Scalia (“It’s too late for that now. . . . We’ve granted cert. . . . We’ve crossed that river”) most explicitly defended the defendants’ standing to argue the case.

By contrast, the least likely of the above outcomes is probably a ruling that applies only to a handful of states with civil-union or domestic-partnership laws, since a number of justices expressed skepticism over the Obama administration’s odd reasoning that California’s extension of rights short of full-on marriage to same-sex couples rendered it unconstitutional for the state not to go all the way.

Stay Together for the Kids?

Jurisdictional issues aside, the central contention of Cooper and Prop 8’s defenders is that the state’s support for traditional marriage is rooted in its interest in procreation and that same-sex marriage fails to further this interest. But even if that were stipulated to be true, it may not be enough, since, as Justice Kagan pointed out, it does not establish the further proposition that allowing same-sex marriages harms the state’s interests. Indeed, Cooper only half-heartedly argued that “it is reasonable to be very concerned that redefining marriage as a genderless institution could well lead over time to harms to that institution and to the interests that society has always used that institution to address.”

Yet he wouldn’t commit to a concrete example of such harm, even when Justice Scalia stepped in to offer the example of same-sex adoption, which he argued could have deleterious effects. Justices Kagan and Breyer asked whether the state’s interest in procreation could justify the denial of marriage licenses to sterile heterosexual couples or heterosexual couples past reproductive age. Cooper replied that it would be unconstitutional for the state so to restrict marriage but then turned to a natural-law-flavored argument that redefining marriage as ungendered would nevertheless “sever its abiding connection to its historic traditional procreative purposes, and . . . refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults.”

Even if one is inclined to sympathize with this style of argument, Cooper’s inability to put empirical meat on its bones could limit its effectiveness. Part of it comes down to which equal-protection standard the Court elects to apply to the case. If it goes with the “rational basis” standard, which is both the loosest standard and the one typically used in claims of discrimination on the basis of sexual orientation, it would suffice for Cooper to prove that the state has an interest in marriage and that Prop 8 is rationally related to furthering that interest. If the Court sets a precedent by applying a tougher standard (such as “intermediate” or “strict scrutiny”), the defenders of Prop 8 would have a higher bar to clear.

Unconstitutional Since When?

The most charged exchange on the other side of the issue was between Justice Scalia and Ted Olson, who’d like the Court to find a constitutional right to gay marriage in all 50 states:

JUSTICE SCALIA: I’m curious, when — when did — 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?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?

JUSTICE SCALIA: It’s an easy question, I think, for that one. 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.

(Laughter.)

JUSTICE SCALIA: When do you think it became unconstitutional? Has it always been unconstitutional?

MR. OLSON: When the — when the California Supreme Court faced the decision, which it had never faced before, is — does excluding gay and lesbian citizens, who are a class based upon their status as homosexuals — is it — is it constitutional —

JUSTICE SCALIA: That – that’s not when it became unconstitutional. That’s when they acted in an unconstitutional matter — in an unconstitutional matter. When did it become unconstitutional to prohibit gays from marrying?

MR. OLSON: That — they did not assign a date to it, Justice Scalia, as you know. What the court decided was the case that came before it —

JUSTICE SCALIA: I’m not talking about the California Supreme Court. I’m talking about your argument. You say it is now unconstitutional.

MR. OLSON: Yes.

JUSTICE SCALIA: Was it always unconstitutional?

MR. OLSON: It was constitutional when we — as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that —

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.

JUSTICE SCALIA: Well, how am I supposed to know how to decide a case, then —

MR. OLSON: Because the case that’s before you —

JUSTICE SCALIA: — if you can’t give me a date when the Constitution changes?

This is Scalia, the consummate originalist, obliquely driving at the point that the 14th Amendment, as passed, had nothing to do with homosexuality or marriage. In the end, it would be some version of this worry, coupled with a modicum of judicial restraint, that would prevent the Court from ruling broadly that there is a constitutional right to same-sex marriage. Of course, this could be something of a temporary victory for supporters of traditional marriage, as even Cooper argued that one of the reasons for the judiciary not to intervene is that Americans’ conception of marriage is “changing rapidly” and this change is playing out in the democratic process. One way of interpreting that? There’s no need for the judicial imposition of gay marriage; we’ll have the democratic imposition soon enough.

The Kennedy Factor

Like so many cases in the Roberts Court, Hollingsworth is really a battle for Justice Anthony Kennedy’s soul. And, as usual, Kennedy could go either way. On the one hand, Kennedy appeared not to buy gay-marriage supporters’ argument that Prop 8 defenders don’t have standing to defend a law that their elected officials won’t. Kennedy said accepting such an argument created a “one-way ratchet” that favored the state, allowing it to defend only the ballot initiatives it favored and to effectively veto those it did not. But on the merits, Kennedy seemed reluctant to make any substantive ruling on the wisdom or harm of redefining marriage when efforts to do so are, in Justice Alito’s words, younger “than cell phones or the Internet.” Said Kennedy: “We have five years of information to weigh against 2,000 years of history or more.”

Kennedy’s particular bundle of worries could point to a non-decision decision. Kennedy could end up in a minority, with the liberal justices and Chief Justice Roberts holding that Prop 8’s defenders lack standing. As Tom Goldstein of SCOTUSblog suggests, that would mean vacating the Ninth Circuit ruling while letting Vaughn Walker’s original ruling stand. This would settle the question only temporarily, and only in California. Or, if the Court were without a majority on any remedy, the Ninth Circuit’s ruling would be left in place, which would represent a slightly broader victory for gay-marriage proponents but would likewise leave the issue unsettled. In other words, at the end of the day, the likeliest outcome is no outcome.

— Daniel Foster is NRO’s news editor.