Tying the Gordian Knot
Five takeaways from the Proposition 8 oral arguments.

Ralliers march outside the Supreme Court, March 26, 2013.


Daniel Foster

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.