Just finished reading the transcript of the oral arguments surrounding Proposition 8 at the Supreme Court this morning. You can read it for yourself here.
Essentially, as of now, the court is punting the case, and will not rule on the constitutionality of it. If this position holds until June, essentially nothing at all changes. Same-sex marriage will continue to be legal in California based on the 9th-Circuit court rulings, but it is still up to states to decide. The decision could of course change before the official ruling in June, but right now, here is how it stands.
I’ve highlighted the main points the Justices made as to why they will not be making a decision on SSM at this time. And please, don’t start any debates on this post, as I am not agreeing or disagreeing with any side. I’m simply displaying some of the main points that the Justices argued.
First big point the court argued is that if you equate traditional marriage with same-sex marriage, you invalidate procreation within marriage.
MR. COOPER: Yes, Your Honor. The concern
19 is that redefining marriage as a genderless institution
20 will sever its abiding connection to its historic
21 traditional procreative purposes, and it will refocus,
22 refocus the purpose of marriage and the definition of
23 marriage away from the raising of children and to the
24 emotional needs and desires of adults, of adult couples.
Second big point the court argued is that while there are sociologists who say gay parents raising children does not affect the outcome or quality of life of a child, there are many others who claim that it does have negative consequences. It is too early to tell in America, vs. what has happened in other countries that have legalized SSM, such as in Norway, where after the legalization of SSM, today more than 80% of children are bon out of wedlock. There are no such studies yet demonstrating the potential negative effects here in the U.S.
JUSTICE SCALIA: Mr. Cooper, let me — let
5 me give you one — one concrete thing. I don’t know why
6 you don’t mention some concrete things. If you redefine
7 marriage to include same-sex couples, you must — you
8 must permit adoption by same-sex couples, and there’s —
9 there’s considerable disagreement among — among
10 sociologists as to what the consequences of raising a
11 child in a — in a single-sex family, whether that is
12 harmful to the child or not. Some States do not — do
13 not permit adoption by same-sex couples for that reason.
Third big point argued by the Chief Justice is that gay marriage proponents already have equal rights. He claims that right now every man has an equal right to marry a woman, and a woman a man. What SSM marriage proponents are looking for are different rights and are simply interested in changing the definition of a label, but that changing a definition of something, does not truly mean that that something is now something else, simply because you call it something else. He illustrates this by saying you can force a child to call someone his friend, even if he is not. And just because that child is forced to call another child his friend, does not equate to being an actual friend of that child.
CHIEF JUSTICE ROBERTS: Same-sex couples
20 have every other right, it’s just about the label. If you
24 tell — if you tell a child that somebody has to be
25 their friend, I suppose you can force the child to say,
1 this is my friend, but it changes the definition of what
2 it means to be a friend.
3 And that’s it seems to me what the — what
4 supporters of Proposition 8 are saying here. You’re —
5 all you’re interested in is the label and you insist on
6 changing the definition of the label.
Surprising fourth big argument made by left-leaning Justice Sotomayor, is that if you legalize SSM, where does it stop? If you say marriage is a fundamental right, then what restrictions can exist? Do you also legalize incest and polygamy? She does not advocate pedophilia being legalized as Justice Ginsburg does, but she asks, “What’s left?” Her concern is that if anyone can marry based off of their love and desires, than EVERYONE can marry based off of their love and desires.
JUSTICE SOTOMAYOR: Mr. Olson, the bottom
10 line that you’re being asked — and — and it is one
11 that I’m interested in the answer: If you say that
12 marriage is a fundamental right, what State restrictions
13 could ever exist? Meaning, what State restrictions with
14 respect to the number of people, with respect to — that
15 could get married — the incest laws, the mother and
16 child, assuming that they are the age — I can — I can
17 accept that the State has probably an overbearing
18 interest on — on protecting a child until they’re of
19 age to marry, but what’s left?
Justice Kennedy is likely the deciding vote on whatever happens in this case. His big argument is that same-sex marriage is too new and we should not yet wade “into uncharted waters” where we do not yet know what the societal impacts will truly be.
JUSTICE KENNEDY: The problem — the problem
20 with the case is that you’re really asking, particularly
21 because of the sociological evidence you cite, for us to
22 go into uncharted waters, and you can play with that
23 metaphor, there’s a wonderful destination, it is a
24 cliff. Whatever that was.
1 But you’re — you’re doing
2 so in a — in a case where the opinion is very narrow.
3 Basically that once the State goes halfway, it has to go
4 all the way or 70 percent of the way, and you’re doing
5 so in a case where there’s a substantial question on —
6 on standing. I just wonder if — if the case was
7 properly granted.
Justice Alito then elaborates and seemingly agrees with Justice Kennedy. He argues that traditional marriage has been around for thousands of years and is the fundamental building block and preservation of society. He then says that SSM is an institution newer than cell phones and the Internet. He claims that the court should not make it its business to legislate what it does not yet know, and that the decisions should continue to be left up to the people through initiatives, referendums, and their elected public officials.
JUSTICE ALITO: You want us to assess the
13 effects of same-sex marriage, the potential effects
14 on — of same-sex marriage, the potential — the effects
15 of Proposition 8. But what is your response to the
16 argument which has already been mentioned about the need
17 to be cautious in light of the newness of the — the
18 concept of — of same-sex marriage.
19 The one thing that the parties in this case
20 seem to agree on is that marriage is very important.
21 It’s thought to be a fundamental building block of
22 society and its preservation essential for the
23 preservation of society. Traditional marriage has been
24 around for thousands of years. Same-sex marriage is
25 very new. I think it was first adopted in
1 Netherlands in 2000. So there isn’t a lot of data about
2 its effect. And it may turn out to be a — a good
3 thing; it may turn out not to be a good thing, as the
4 supporters of Proposition 8 apparently believe.
5 But you want us to step in and render a
6 decision based on an assessment of the effects of this
7 institution which is newer than cell phones or the
8 Internet? I mean we — we are not — we do not have the
9 ability to see the future.
10 On a question like that, of such fundamental
11 importance, why should it not be left for the people,
12 either acting through initiatives and referendums or
13 through their elected public officials?
The last big indication that no new sweeping reforms will be made regarding SSM across the board, is that even the defendant of SSM in this case claims that he is only arguing on behalf of California, not the entire country, and that those decisions should be left open for future adjudication in each state.
CHIEF JUSTICE ROBERTS: I don’t want to — I
5 want you to get back to Justice Alito’s other points,
6 but is it the position of the United States that
7 same-sex marriage is not required throughout the
9 GENERAL VERRILLI: We are not — we are not
10 taking the position that it is required throughout the
11 country. We think that that ought to be left open for a
12 future adjudication in other States that don’t have the
13 situation California has.
Of course, these oral arguments may end up meaning nothing in the end. During the oral arguments for the Affordable Care Act (Obamacare), it seemed that the law would easily be struck down, but Chief Justice Roberts decided to change his mind and his vote before the final tally several months later.
More information and analysis can be found at scotusblog.com.
Ask me anything.