1. Is there anyone who can defend this thing?
A lot of the arguments centered on the question of whether Protectmarriage.com, the group defending Prop 8 in court, has standing. If it doesn't, then the case is dismissed and lower court rulings against Prop 8 stand, though no pro-same-sex marriage precedent is set. For example, see this exchange between Chief Justice John G. Roberts Jr., who appears to doubt that Protectmarriage.com has standing, and Charles Cooper, the lawyer defending the law. Justices Elena Kagan and Anthony M. Kennedy join in:
JUSTICE KAGAN: Well, I just -- if you would on the hypothetical: Could a State just assign to anybody the ability to do this?
MR. COOPER: Your Honor, I think it very well might. It very well might be able to decide that any citizen could step forward and represent the interests of the State and the people in that State -
CHIEF JUSTICE ROBERTS: Well, that would be -- I'm sorry, are you finished?
MR. COOPER: Yes, Your Honor.
CHIEF JUSTICE ROBERTS: Okay. That -- that may be true in terms of who they want to represent, but -- but a State can't authorize anyone to proceed in Federal court, because that would leave the definition under Article III of the Federal Constitution as to who can bring -- who has standing to bring claims up to each State. And I don't think we've ever allowed anything like that.
MR. COOPER: But, Your Honor, I guess the point I want to make is that there is no question the State has standing, the State itself has standing to represent its own interests in the validity of its own enactments. And if the State's public officials decline to do that, it is within the State's authority surely, I would submit, to identify, if not all -- any citizen or at least supporter of the measure, certainly those, that that very clear and identifiable group of citizens -
JUSTICE KENNEDY: Well, the Chief -- the Chief Justice and Justice Kagan have given a proper hypothetical to test your theory. But in this case the proponents, number one, must give their official address, they must pay money, and they must all act in unison under California law. So these five proponents were required at all times to act in unison, so that distinguishes -- and to register and to pay money for the -- so in that sense it's different from simply saying any citizen.
2. Has the Supreme Court settled this issue?
The Supreme Court, in the 1970s, dismissed a case called Baker v. Nelson concerning same-sex marriage. One question raised was whether that decision should matter. Ruth Bader Ginsburg doubts it:
MR. COOPER: The issues, the constitutional issues that have been presented to the Court, are not of first impression here. In Baker v. Nelson, this Court unanimously dismissed for want of a substantial Federal question.
JUSTICE GINSBURG: Mr. Cooper, Baker v. Nelson was 1971. The Supreme Court hadn't even decided that gender-based classifications get any kind of heightened scrutiny.
MR. COOPER: That is -
JUSTICE GINSBURG: And the same-sex intimate conduct was considered criminal in many States in 1971, so I don't think we can extract much in Baker v. Nelson.
MR. COOPER: Well, Your Honor, certainly I acknowledge the precedential limitations of a summary dismissal. But Baker v. Nelson also came fairly fast on the heels of the Loving decision. And, Your Honor, I simply make the observation that it seems implausible in the extreme, frankly, for nine justices to have -- to have seen no substantial Federal question if it is true, as the Respondents maintain, that the traditional definition of marriage insofar as -- insofar as it does not include same-sex couples, insofar as it is a gender definition is irrational and can only be explained, can only be explained, as a result of anti-gay malice and a bare desire to harm.
3. Are gays and lesbians a protected class?
Because if they are, that makes the decision a whole lot easier:
JUSTICE SOTOMAYOR: Outside of the -outside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the Government could make? Denying them a job, not granting them benefits of some sort, any other decision?
MR. COOPER: Your Honor, I cannot. I do not have any -- anything to offer you in that regard. I think marriage is -
JUSTICE SOTOMAYOR: All right. If that - if that is true, then why aren't they a class? If they're a class that makes any other discrimination improper, irrational, then why aren't we treating them as a class for this one thing? Are you saying that the interest of marriage is so much more compelling than any other interest as they could have?
4. Who does allowing same-sex marriage hurt?
One question in determining whether there's a rational basis for bans on same-sex marriage is whether such marriages cause any identifiable harm. Many judges doubted it, though Antonin Scalia was more sympathetic:
JUSTICE KAGAN: Well, could you explain that a little bit to me, just because I did not pick this up in your briefs.
What harm you see happening and when and how and -- what -- what harm to the institution of marriage or to opposite-sex couples, how does this cause and effect work?
MR. COOPER: Once again, I -- I would reiterate that we don't believe that's the correct legal question before the Court, and that the correct question is whether or not redefining marriage to include same-sex couples would advance the interests of marriage as a -
JUSTICE KENNEDY: Well, then are -- are you conceding the point that there is no harm or denigration to traditional opposite-sex marriage couples? So you're conceding that.
MR. COOPER: No, Your Honor, no. I'm not conceding that.
JUSTICE KENNEDY: Well, but, then it -- then it seems to me that you should have to address Justice Kagan's question.
MR. COOPER: Thank you, Justice Kennedy. I have two points to make on them.
The first one is this: The Plaintiffs' expert acknowledged that redefining marriage will have real-world consequences, and that it is impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be. And among those real-world consequences, Your Honor, we would suggest are adverse consequences.
But consider the California voter, in 2008, in the ballot booth, with the question before her whether or not this age-old bedrock social institution should be fundamentally redefined, and knowing that there's no way that she or anyone else could possibly know what the long-term implications of -- of profound redefinition of a bedrock social institution would be. That is reason enough, Your Honor, that would hardly be irrational for that voter to say, I believe that this experiment, which is now only fairly four years old, even in Massachusetts, the oldest State that is conducting it, to say, I think it better for California to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing.
JUSTICE SCALIA: Mr. Cooper, let me -- let me give you one -- one concrete thing. I don't know why you don't mention some concrete things. If you redefine marriage to include same-sex couples, you must -- you must permit adoption by same-sex couples, and there's -there's considerable disagreement among -- among sociologists as to what the consequences of raising a child in a -- in a single-sex family, whether that is harmful to the child or not. Some States do not -- do not permit adoption by same-sex couples for that reason.
5. What do babies have to do with it?
The justices also wrangled with Cooper on whether or not procreative ability is important to the institution of marriage:
JUSTICE KAGAN: Well, suppose a State said, Mr. Cooper, 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 55. Would that be constitutional?
MR. COOPER: No, Your Honor, it would not be constitutional.
JUSTICE KAGAN: Because that's the same State interest, I would think, you know. If you are over the age of 55, you don't help us serve the Government's interest in regulating procreation through marriage. So why is that different?
MR. COOPER: Your Honor, even with respect to couples over the age of 55, it is very rare that both couples -- both parties to the couple are infertile, and the traditional -
JUSTICE KAGAN: No, really, because if the couple -- 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.
MR. COOPER: Your Honor, society's -society's interest in responsible procreation isn't just with respect to the procreative capacities of the couple itself. The marital norm, which imposes the obligations of fidelity and monogamy, Your Honor, advances the interests in responsible procreation by making it more likely that neither party, including the fertile party to that -
JUSTICE KAGAN: Actually, I'm not even -
JUSTICE SCALIA: I suppose we could have a questionnaire at the marriage desk when people come in to get the marriage -- you know, Are you fertile or are you not fertile?
JUSTICE SCALIA: I suspect this Court would hold that to be an unconstitutional invasion of privacy, don't you think?
JUSTICE KAGAN: Well, I just asked about age. I didn't ask about anything else. That's not - we ask about people's age all the time.
MR. COOPER: Your Honor, and even asking about age, you would have to ask if both parties are infertile. Again -
JUSTICE SCALIA: Strom Thurmond was -- was not the chairman of the Senate committee when Justice Kagan was confirmed.
6. Does the marriage statute have to target gays and lesbians, not just disadvantage them?
John Roberts pressed Ted Olson, lawyer for the plaintiffs opposing Proposition 8, on this point:
CHIEF JUSTICE ROBERTS: I'm not sure, counsel, that it makes -- I'm not sure that it's right to view this as excluding a particular group. When the institution of marriage developed historically, people didn't get around and say let's have this institution, but let's keep out homosexuals. The institution developed to serve purposes that, by their nature, didn't include homosexual couples. It is -- yes, you can say that it serves some of the other interests where it makes sense to include them, but not all the interests. And it seems to me, your friend argues on the other side, if you have an institution that pursues additional interests, you don't have to include everybody just because some other aspects of it can be applied to them.
MR. OLSON: Well, there's a couple of answers to that, it seems to me, Mr. Chief Justice. In this case, that decision to exclude gays and lesbians was made by the State of California.
CHIEF JUSTICE ROBERTS: Oh, that's only because Proposition 8 came 140 days after the California Supreme Court issued its decision.
MR. OLSON: That's right.
CHIEF JUSTICE ROBERTS: And 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?
7. How long has straights-only marriage been unconstitutional, if it is?
One obvious question to ask supporters of same-sex marriage is if there was some point in history when banning same-sex marriage wasn't unconstitutional. The Reconstruction-era Congress, for instance, likely wouldn't view the right to marry someone of the same sex as one of the rights guaranteed by the 14th Amendment:
JUSTICE SCALIA: You -- you've led me right into a question I was going to ask. The California Supreme Court decides what the law is. That's what we decide, right? We don't prescribe law for the future. We -- we decide what the law is. 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.
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.
8. What's in a name?
Finally, the justices pressed Olson on whether it mattered that California give gay and lesbian residents the right to "marriage" rather than simply the right to a domestic partnership equivalent to marriage (which is available to them now):
CHIEF JUSTICE ROBERTS: So it's just about -- it's just about the label in this case.
MR. OLSON: The label is -
CHIEF JUSTICE ROBERTS: Same-sex couples have every other right, it's just about the label.
MR. OLSON: The label "marriage" means something. Even our opponents -
CHIEF JUSTICE ROBERTS: Sure. If you tell -- if you tell a child that somebody has to be their friend, I suppose you can force the child to say, this is my friend, but it changes the definition of what it means to be a friend.
And that's it seems to me what the -- what supporters of Proposition 8 are saying here. You're -all you're interested in is the label and you insist on changing the definition of the label.
MR. OLSON: It is like you were to say you can vote, you can travel, but you may not be a citizen. There are certain labels in this country that are very, very critical. You could have said in the Loving case, what -- you can't get married, but you can have an interracial union. Everyone would know that that was wrong, that the -- marriage has a status, recognition, support, and you -- if you read the test, you know -
9. Can the state limit marriage at all?
Sonia Sotomayor pressed Olson on what restrictions on marriage would be allowed if the Court accepted his and other Prop 8 opponents' logic:
JUSTICE SOTOMAYOR: Mr. Olson, the bottom line that you're being asked -- and -- and it is one that I'm interested in the answer: If you say that marriage is a fundamental right, what State restrictions could ever exist? Meaning, what State restrictions with respect to the number of people, with respect to -- that could get married -- the incest laws, the mother and child, assuming that they are the age -- I can -- I can accept that the State has probably an overbearing interest on -- on protecting a child until they're of age to marry, but what's left?
MR. OLSON: Well, you've said -- you've said in the cases decided by this Court that the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing. And if you -- if a State prohibits polygamy, it's prohibiting conduct.
If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status. It's selecting them as a class, as you described in the Romer case and as you described in the Lawrence case and in other cases, you're picking out a group of individuals to deny them the freedom that you've said is fundamental, important and vital in this society, and it has status and stature, as you pointed out in the VMI case.