The Corner

Supreme Court Hears Arguments on Proposition 8

The Supreme Court today heard arguments on Proposition 8, California’s constitutional amendment that bans gay marriage. The court has made a transcript of the oral arguments available here

Both sides addressed the issue of standing, which Ed Whelan has written about here. Below are the key exchanges from the hearing, during which the justices repeatedly asked whether and how the court could issue a ruling that applies only to California. 


Charles J. Cooper, who represents California citizens who voted for Proposition 8, framed the argument as a question of whether the American people should be allowed to engage in a debate over the definition of marriage; he told the justices that the issue before them was whether the Constitution halts such debate. It does so, he said, “only if the Respondents are correct that no rational, thoughtful person of goodwill could possibly disagree with them in good faith on this agonizingly difficult issue.” 

Asked by Justice Anthony Kennedy whether the “traditional” definition of marriage constitutes a “gender-based classification” that would trigger heightened scrutiny from the court, Cooper said it does not, calling it instead one of sexual orientation. Beyond that, gays should not be considered a suspect class because, Cooper argued, homosexuality “does not qualify as an accident of birth.” 


The state’s interest in protecting the institution of marriage is encouraging “responsible procreation,” according to Cooper. Justice Elena Kagan pressed him to articulate the state’s interest in excluding gay marriages from the institution. As he struggled to cite specific consequences, Justice Antonin Scalia intervened. “Mr. Cooper, let me — let me give you one — one concrete thing. I don’t know why you don’t mention some concrete things,” he counseled. Scalia cited debate among sociologists about the consequences of raising a child in a same-sex household, noting that gay adoption would inevitably become far more common if the court finds a constitutional right to gay marriage.  

Kennedy seemed to be persuaded by this argument, pointing out that, with regard to the impact of gay adoptions on children, “We have five years of information to weigh against 2,000 years of history or more.”


A humorous moment came when Kagan challenged Cooper to justify the granting of marriage licenses to older couples incapable of producing children. “Your honor,” Cooper responded, “even with respect to couples over the age of 55, it is very rare that both parties to the couple are infertile.” “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, Kagan shot back.””#more#  


Former solicitor general Ted Olson, representing plaintiffs seeking to marry but prevented from doing so under California’s current law, argued that limiting marriage to heterosexuals strips homosexuals of the rights of privacy, liberty, spirituality, and identity associated with the institution. He was challenged vigorously by both Chief Justice John Roberts and by Scalia. 

“When the institution of marriage developed historically, people didn’t go around and say let’s have this institution, but let’s keep out homosexuals,” Roberts objected in response to Olson’s claim that the institution is now being walled off. Olson pointed to the California measure, arguing that the state made an explicit decision to exclude gays. “That’s only because Proposition 8 came 140 days after the California Supreme Court issued its decision,” Roberts responded. “Don’t you think it’s more reasonable to view it as a change by the California Supreme Court of this institution that’s been around since time immemorial?”

“When did it become unconstitutional to exclude homosexual couples from marriage? 1791?” Scalia interjected, “1868, when the 14th Amendment was adopted? . . . When did the law become this?” Olson pointed to the time when we, as a culture, acknowledged that an individual’s sexual orientation is beyond his control, but conceded, “There’s no specific date in time. This is an evolutionary cycle.


If marriage is a fundamental right, as Olson argued, Justice Sonia Sotomayor wondered whether the state could define or restrict the institution in any way, for example, with respect to the number of people permitted to enter into a marriage. Cases that raise question about exploitation — such as polygamy and simultaneous marriages — are another question, Olson said. 

Justice Kennedy told Olson that he was pushing the court into “uncharted waters.” “There’s a wonderful destination, it is a cliff,” he joked. Olson told the court that it has ventured into such waters before, pointing to its 1967 ruling declaring prohibitions on interracial marriages unconstitutional. 

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