Today the Supreme Court heard oral arguments on California’s Proposition 8, which amends the State Constitution to define marriage only as a union between a man and a woman. The Court heard from attornies representing the parties on each side, as well as from the Solicitor General, who is, on behalf of the Obama administration, urging the Court to invalidate Prop 8.
This is not the only day this week the Court will hear arguments on the question of same-sex marriage. It has taken two cases on the issue, the other one being a challenge to the federal law defining marriage as a union of a man and a woman for federal purposes. The Court hears arguments on the Defense of Marriage Act tomorrow.
You can read the whole transcript of today’s oral argument here. There is already a lot of commentary on this. Suffice it to say that today’s oral argument certainly does not tell us clearly how the Court will rule on this issue. There is even some question whether the Court will rule at all on the merits of the case. The Justices today kicked around possible arguments that the litigants defending Prop 8 don’t really have standing under federal principles to bring the case. This issue arose because elected officials in California deceded not to defend the constitution amendment California voters had passed in the 2008 elections.
On the merits, however, some interesting points were raised, and in one case from an interesting quarter.
Not surprising was the skepticism about a constitutional right to same-sex marriage expressed by Justice Scalia and Chief Justice Roberts. Scalia pressed Ted Olson, the litigator against Prop 8, on a question that bears on the implicit use of “living constitutionalism” to invalidate Prop 8. When, Scalia asked, did the traditional definition of marriage become unconstitutional? Olson was in a bind. He did not want to suggest that it had always been unconstitutional, since that would imply that the original framers and ratifiers of the Constituition (whether of the Bill of Rights in 1791 or of the 14th Amendment in 1868) had thought that it required same-sex marriage–an idea that probably no serious person would try to defend. On the other hand, neither could Olson point to a particular time at which California’s definition of marraige had become unconstitutional. There is, he said, a process of evolution on these things. That, Scalia responded, is exactly the problem. Scalia was saying that as a Judge he needs some clear criterion on which to rely if he is to vote to invalidate a democratically-enacted law. Olson’s appeal to a vague evolutionary process does not accomplish anything, since even if Scalia believed in it he would still have no way of knowing at what point we find ourselves in that process. Maybe we are not there yet. Olson’s argument could give no guidance on this question.
Chief Justice Roberts also intervened to offer an observation that I think is helpful to remember. Proponents of same-sex marriage often speak as if the traditional definition of marriage were simply the result of bigotry. Roberts reminded us that there is something tendentious about this claim. After all, he observed, people did not invent marriage at certain point in the past and decide to exclude homosexuals from it. Rather it arose to serve certain purposes that seemed to have nothing to do with homosexuality.
What was a bit surprising was to find Justice Sotomayor, one of President Obama’s appointees, raising a question about the consequences of finding a right to same-sex marriage. Could you let it stop there, she wondered? She asked Olson, in effect: since you say marriage is a fundamental right from which the state cannot exclude homosexuals, how could you then maintain any other exclusions that the law might provide? How could you sustain the legitimacy of laws prohibiting, say, polygamy? This is a good question. Proponents of same-sex marriage say that the traditional definition excludes them from marriage. To this the defenders of the traditional definition say: no, you are still free to marry a consenting person of the opposite sex. In response, the critics of the traditional definition might well say: but that is of no use to me, since I don’t want to marry a person of the opposite sex. Similarly, a person who wants to enter a polygamous marriage might well complain that the law currently forbids his or her marriage. In response, we could say: no, you are perfectly free to marry any unmarried consenting person. To that the polygamist might say: that so-called “right” is useless to me, because I want to marry this already married person, and that person consents, as does that person’s existing spouse. If the Court says majorities cannot choose a definition of marriage that runs contrary to the personal desires of one set of objecting citizens, by what constitutional principles do it say majorites can do so to some other set of objecting citizens?