Kennedy, who wrote the court’s last two decisions that provided victories for gay rights groups, seemed particularly torn.
“The problem with the case is that you’re really asking . . . for us to go into uncharted waters, and you can play with that metaphor: There’s a wonderful destination, it is a cliff,” he said, adding: “We have five years of information to weigh against 2,000 years of history or more.”
On the other hand, he said: “There are some 40,000 children in California . . . that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?”
Kennedy also worried that a decision that Cooper’s clients did not have standing to bring the case would encourage state officials to simply not defend citizen initiatives with which they disagree.
A familiar divide
The debate about whether marriage should be extended to same-sex couples revealed a familiar ideological divide on the court.
Liberals such as Justice Elena Kagan seemed not to buy Cooper’s argument that the state’s interest in marriage was to foster responsible procreation and child-rearing.
“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,’ ” Kagan said. “Would that be constitutional?”
Cooper said one of the partners might still be fertile, and Justice Antonin Scalia made a joke about the late senator Strom Thurmond, who fathered a child while in his 70s.
Kagan also pressed Cooper on his arguments that extending marriage benefits to gay couples could hurt heterosexual couples. “How does this cause-and-effect work?” she asked.
“We don’t believe that’s the correct legal question before the court,” Cooper said. “The correct question is whether or not redefining marriage to include same-sex couples would advance the interests of marriage.”
Conservatives such as Scalia criticized Olson’s argument that there was a constitutional right to same-sex marriage. Scalia repeatedly pressed Olson to tell him when it became unconstitutional to exclude gays from marriage — his point being that for years, it was commonly understood that there was no right.
After much back and forth, Olson finally said: “There’s no specific date in time. This is an evolutionary cycle.”
Roberts, too, said he was not sure whether there was any show of bias in excluding same-sex couples.
“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,’ ” he said. “The institution developed to serve purposes that, by their nature, didn’t include homosexual couples.”
He also questioned Olson about his contention that it was inconsistent for California to provide gay couples with every other benefit of marriage but withhold the legal designation.
“So it’s just about the label in this case,” Roberts said.
“The label ‘marriage’ means something,” Olson responded.
Roberts did not give up: “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.”
Olson repeatedly brought up the court’s 1967 decision in
Loving v. Virginia
, which swept away state laws prohibiting interracial marriage: “You could have said in the Loving case . . . ‘You can’t get married, but you can have an interracial union.’ Everyone would know that that was wrong.”
Verrilli, the solicitor general, said the court should recognize that waiting to make a decision on same-sex marriage “is not a neutral act.”
“Waiting imposes real costs in the here and now,” Verrilli said. “It denies . . . to the parents who want to marry the ability to marry, and it denies to the children, ironically, the very thing that [Proposition 8 supporters] focus on is at the heart of the marriage relationship.”
But Roberts said the administration’s position would carry more force if it was prepared to argue that same-sex marriage must be allowed nationwide.
“You [are] saying it’s got to happen right now in California, but you don’t even have a position about whether it’s required in the rest of the country,” he said.
The case is Hollingworth v. Perry.
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