feature image credit Jim Wilson, New York Times
Today was the first day of Supreme Court hearings on cases related to the legality and constitutionality of same-sex marriage. Today, the court heard oral arguments related to Prop 8, and there are a few different ways that the court could potentially respond to those arguments: they could choose to uphold Prop 8 and deny marriage rights to California’s citizens, they could choose to strike down Prop 8 and agree with Judge Walker’s opinion that restricting marriage to heterosexual couples is discriminatory and unconstitutional, or they could not make a decision at all on Prop 8 and leave this issue to be decided at the state level. (ThinkProgress has a good explanation of this.)
Although the question of whether one-man-one-woman marriage is discriminatory and/or constitutional is the one most people are interested in, there are other issues at stake with Prop 8 as well. For instance, one of the recurring questions has been about the question of ‘standing’ — whether or not the people who are appealing in favor of Prop 8 even have the legal right to do so, considering their relationship to the case. Back in 2011, the California Supreme Court ruled that Prop 8’s defendants did have standing, but that doesn’t mean the Supreme Court feels the same way. If they don’t think there’s standing, the actual question of the case may not be considered at all.
Even if the court did rule in the most ideal way possible, fully striking down Prop 8 (as Obama’s administration wants them to do), even that leaves plenty of options for how things could play out. A “broad” ruling would mean that defining marriage as between a man and a woman is declared unconstitutional, and the effects of this ruling would have nationwide repercussion. But there could also be a “narrow” ruling, which would mean that the court’s verdict on Prop 8 would apply only to California.
The arguments for Prop 8, made by the original case lawyer Charles Cooper, were fairly familiar and unremarkable. The justices seemed largely skeptical of many of his points, responding to Cooper’s argument that marriage should be linked to biological procreation by asking if that meant states should also outlaw marriage for straight people over the age of 55. (Cooper attempted to roll with the punches, claiming that in that situation “at least one member of the marriage would likely still be fertile,” a suggestion which does not seem to have been taken seriously by the justices.) A transcript of the full oral arguments on Prop 8 can be found at Politico. Via the Washington Post, the full oral arguments can be heard below. The SCOTUS Blog also has a breakdown of the oral arguments “in plain English” if you’d like a summary to read alongside.
Although an actual ruling on the case won’t come until this summer, and we therefore have no way of knowing what’s actually going to happen with this case, many outlets are speculating on what a ruling may be based on judge’s questions and previous stances on comparable cases. Very generally speaking, many seem to feel that the court may not ultimately choose to decide the merits of the case, due to assessing the defenders of Prop 8 as having less than adequate standing. Justice Roberts observed that “U.S. citizens in general do not have a right to sue to enforce laws they favor” and many of the judges asked pointed questions asking Cooper to justify his participation in the case, which suggests that this is a major issue up for discussion. More frustratingly, other justices suggested that this is “not the right time” to decide the case. (Justice Alito’s reasoning that “gay marriage as a concept is ‘newer than cellphones and the Internet'” is, frankly, so ridiculous that it’s hard to even form commentary on.) Either way, if the court does decide not to rule on this case, it would be frustrating for many who were hoping for an absolute takedown of Prop 8 and hoping that it would have national implications. On the other hand, the consensus of those speculating seems to be that the court would tend more towards a narrow ruling than a broad one, so that may not be a concern that’s on the table after all.
The good news about the justices’ behavior during the oral arguments was that most of the skepticism seemed to be directed at Charles Cooper and the Protect Marriage side, and to the extent that the court seemed unsure or unenthusiastic about moving forward, it was about the scope of the case, not about the subject of marriage equality overall. While some justices, like Scalia, are an almost surefire anti-gay bet, it seems unlikely at this point that the court will uphold Prop 8 and actively perpetuate discrimination. Justices seem much more concerned with whether or not Cooper’s side has legal standing than with whether two moms getting married will somehow ruin their child’s life.
Ultimately, however, we have no way of knowing how this issue will play out. Pro-equality lawyer Ted Olson says that “based on the questions the justices asked, [he] has no idea” what the final ruling will be, and we’ll continue to not know until probably June. Tomorrow, the court will hear arguments on DOMA, which is a related but different issue – Prop 8 speaks to whether or not it’s legal to explicitly ban marriage rights for gay people within a state, while DOMA speaks more to whether it’s legal to federally define marriage rights in such a way that they exclude gay people, and therefore the rulings on each case will have different implications. We’ll be back here tomorrow to talk about DOMA, and then anxiously waiting until June to hear the ruling!