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Ellen Pontac (left) and her wife Shelly Bailes celebrate their one-year wedding anniversary and the one-year anniversary of a California Supreme Court ruling allowing same-sex marriages, at a press conference in Sacramento, Calif., 06/17/09. (photo: Max Whittaker/Getty Images)
Ellen Pontac (left) and her wife Shelly Bailes celebrate their one-year wedding anniversary and the one-year anniversary of a California Supreme Court ruling allowing same-sex marriages, at a press conference in Sacramento, Calif., 06/17/09. (photo: Max Whittaker/Getty Images)



The Court's Gay-Marriage Confusion

By Jeffrey Toobin, The New Yorker

27 March 13

 

hort version of what we can tell from Tuesday's oral arguments about how the Supreme Court will rule on same-sex marriage: beats me - but tune in tomorrow.

Less short version: as usual, it's probably all up to Justice Anthony Kennedy.

Longer version: even if I had not resolved to be a little less definitive in my predictions about the results of Supreme Court cases, I would still have been baffled by the oral arguments Tuesday about Proposition 8, California's same-sex marriage ban. Before the questions began, the case offered a Rubik's Cube's worth of possibilities for resolution - and it still does. Will the Justices reach a decision on the merits? If so, what will it be - and in which states will it apply? (Just California? The nine states of the Ninth Circuit? Those with civil unions? All fifty?) Do the plaintiffs in the case have standing? Should the Justices have accepted the case at all? And can they somehow get rid of it at this late date? After the eighty minutes of arguments, I conclude that the answers to all of those questions seem still up for grabs.

Chief Justice Roberts instructed the lawyers to begin their arguments on the question of standing - which presaged his clear interest in the subject. The case does have an unusual procedural setting. It began in 2009, when the plaintiffs, a gay couple and a lesbian couple who want to get married, sued the state of California to overturn Proposition 8. They sued the governor and attorney general - who promptly declined to defend the law because they agreed with the plaintiffs that it was unconstitutional. So who was to defend the law? A group of citizens who sponsored and voted for Proposition 8 raised their hands, stepped in, and took over.

Did those volunteers have the legal right, the standing, to take that side in court? An unusual lineup of five Justices appeared to think not: Roberts and the four liberals - Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan - the same five who saved Obamacare, as it happens. If they were to unite to dismiss the case, it appears that Proposition 8 would still be overturned in California, but there would be no precedent on the issue for the rest of the country. (On the standing issue, Scalia referred several times to the Attorney General of California as "he." She is Ms. Kamala Harris.)

On the merits, the split appeared more predictable: the liberal four appeared to believe that Proposition 8 violated the constitutional rights of the plaintiffs, and Roberts, Antonin Scalia, and Samuel Alito (along with the silent-but-predictable Clarence Thomas) were prepared to uphold the California measure.

The politics of the situation seemed much on everyone's mind. The opponents of same-sex marriage made clever use of their continuing losses in public opinion. Scalia and Alito (along with Chuck Cooper, the lawyer for the Proposition 8 supporters) said the political turnabout suggested that the Court should stay out of the same-sex marriage question. As Scalia said, "They're arguing for a nationwide rule which applies to states other than California, that every state must allow marriage by same-sex couples. And so even though states that believe it is harmful - and I take no position on whether it's harmful or not, but it is certainly true that there's no scientific answer to that question at this point in time." So states should be allowed to decide on their own.

The over-all view of the liberals was fairly clear, too. Cooper made a big show of asserting that marriage was inexorably tied to procreation - but Kagan shredded this argument pretty well. "Mr. Cooper," Kagan said, "suppose a state said that because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of fifty-five. Would that be constitutional?" Cooper said no.

"Because that's the same state interest, I would think, you know, if you are over the age of fifty-five, you don't help us serve the government's interest in regulating procreation through marriage. So why is that different?" As Cooper waffled, Kagan drew a laugh by saying: "I can just assure you, if both the woman and the man are over the age of fifty-five, there are not a lot of children coming out of that marriage." She had made her point.

But the lawyers confronted the liberals with a political problem, too. Did they really want to impose same-sex marriage on states that clearly didn't yet want it? Could they produce a more limited, but still pro-marriage equality, ruling? (Ginsburg, as she told me earlier this year, likes limited rulings in these kinds of cases, and she made a similar point in court today.) There were several versions of the question of whether the Court could endorse same-sex marriage in California without affecting the rules in all fifty states. Sotomayor put it most clearly:

Is there any way to decide this case in a principled manner that is limited to California only?

That was what the Ninth Circuit Court of Appeals had done, but Kennedy in particular appeared unpersuaded by that court's rationale.

It was Kennedy - the swing vote - who was most concerned about a broad ruling. He said, "The problem with the case is that you're really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that metaphor, 'There's a wonderful destination,' 'It is a cliff.' " Neither seemed like a place Kennedy wanted to go. "I just wonder if the case was properly granted," he said. In other words, perhaps the Justices should just punt on Proposition 8, leave the matter where it stood, and concentrate on the Defense of Marriage Act case, which will be argued Wednesday.

In all, then, the argument on Prop 8 appeared to raise the stakes for the argument on DOMA. That case presents a narrower question - the constitutionality of a single federal law, as opposed to the marriage laws in the forty-one states that do not currently have same-sex marriage. DOMA penalizes gay and lesbian married people in states that permit same-sex marriage by denying them federal benefits and obligations. That's a more tempting (and distasteful) target for the liberals and certainly for Kennedy himself. It may be that the Court has determined to strike down DOMA, and leave the broader issue of requiring same-sex marriage for another year.

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