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The Supreme Court tackles same-sex marriage: 5 takeaways
Once again, all eyes are on the swing vote, Justice Anthony Kennedy
 
As protesters rally outside the Supreme Court, justices debate one of the biggest social issues of our time.
As protesters rally outside the Supreme Court, justices debate one of the biggest social issues of our time. Win McNamee/Getty Images

On Tuesday, the Supreme Court heard oral arguments on the constitutionality of Proposition 8, a California referendum that outlawed gay marriage in the state in 2008. (Listen to the oral arguments and read the transcript here.) The case, Hollingsworth v. Perry, could be decided in numerous ways — the justices could rule on narrow grounds that would set a minimal judicial precedent, or go so far as to proclaim that gay marriage is protected by the Constitution. As usual, the justices' remarks are being read like tea leaves to divine which way the court might rule. Here, 5 takeaways from the Supreme Court's big gay marriage case:

1. Too soon?
In the run-up to oral arguments, there was much discussion about whether the court was tackling the issue prematurely. Justice Anthony Kennedy, who once again finds himself playing the role of a potential swing vote, immediately raised that point, saying, "I just wonder if this was properly granted." Kennedy was not alone, with Justice Sonia Sotomayor asking, "Why is taking a case now the answer?"

While public opinion has swung dramatically in recent years in favor of legalizing same-sex marriage, it is illegal in the vast majority of states. Some legal experts have argued that the court should let the issue develop organically at the legislative level. Justice Ruth Bader Ginbsurg, for example, has previously suggested that the Supreme Court made a mistake in Roe v. Wade by intervening too soon in the issue's development, polarizing the electorate and thrusting the court into the center of the abortion debate.

2. Kennedy is on the fence
On the constitutional merits of gay marriage, Kennedy appeared to be arguing "both sides of the case," write Robert Barnes and Carol Morello at The Washington Post. On the one hand, Kennedy appeared wary of going into "uncharted waters." He suggested the court would be rash to ignore "2,000 years of history" in which marriage has largely been defined as being between a man and a woman.

On the other hand, Kennedy expressed concern about the impact Proposition 8 would have on children of same-sex couples. There are "40,000 children in California that live with same-sex parents," Kennedy said. "The voice of those children is important."

Kennedy has been a driving force for gay rights on the court. In 1996, he authored the 6-3 decision striking down a Colorado referendum that exempted gays and lesbians from the protection of anti-discrimination laws. In 2003, he led a 6-3 ruling that invalidated state laws that made sodomy illegal.

3. Conservatives expressed strong doubts about gay marriage
At least two of the court's conservatives suggested they would not be willing to extend constitutional protections to gay marriage. Justice Samuel Alito said the institution of same-sex marriage is too recent to take so bold a step. "You want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones and the internet?" he asked. "We do not have the ability to see the future."

Justice Antonin Scalia appeared to argue that there was nothing in the Constitution that could warrant such protections. "When did it become unconstitutional to exclude homosexual couples from marriage?" Scalia asked Ted Olson, a former solicitor general for the Bush administration who has taken up the cause against Prop 8. "1791? 1868? When the Fourteenth Amendment was adopted?"

Olson responded with some rhetorical questions of his own: "When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?"

Olson eventually conceded that he couldn't answer Scalia's question, though he "said the courts have never required that kind of precision," according to Evan Perez and Brent Kendall at The Wall Street Journal. Scalia responded, "Well, how am I supposed to…decide a case, then, if you can't give me a date when the Constitution changes?"

Scalia also said it remained unclear what impact same-sex adoptions had on children. "There's considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not," he said. "Some states do not permit adoption by same-sex couples for that reason."

4. Liberals appear to support same-sex marriage
While some of the court's liberals openly wondered whether it was too soon to take up the issue, they appeared to agree that gay marriage was protected by the Constitution's equal protection clause. "Outside of the marriage context," said Sotomayor, "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?"

Justice Elena Kagan expressed doubt that the legalization of same-sex marriages would have a deleterious effect on heterosexual marriages. "How does this cause and effort work?" she asked defenders of Prop 8.

Kagan and Justice Stephen Breyer also took issue with the claim that the state had a right to encourage "responsible procreation." Breyer pointed out that "there are lots of people who get married who can't have children."

However, "there was no clarity on how broadly they would rule" in upholding gay marriage, writes Tom Goldstein at SCOTUSblog.

5. A narrow ruling?
Chief Justice John Roberts' opening questions centered on whether the defenders of Prop 8 had any standing to sue. "It could prove to be a crucial question," writes Adam Liptak at The New York Times, "since the court could decide that they have no standing and effectively leave in place a state ruling striking down the same-sex marriage ban."

After Prop 8 was passed, a state judge ruled that it violated the Constitution's equal protections clause. The 9th Circuit Court of Appeals then ruled on narrower grounds, arguing that California could not take away rights that it had previously granted to gay couples. If the Supreme Court finds that Prop 8's defenders had not been injured by the state judge's decision, then his ruling would stand, minimizing any precedent the Supreme Court might set on the constitutional question of gay marriage.

Alternatively, the court could let the 9th Circuit Court's decision stand. Analysts say both options are certainly within the realm of possibility, given the court's apparent hesitation to become an active participant in a rapidly evolving issue.

 
Ryu Spaeth is deputy editor at TheWeek.com.

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