The arguments began abruptly. Chief Justice John Roberts did not let attorney Charles Cooper, representing the proponents of Proposition 8, even finish his first sentence before he interrupted.
MR. COOPER: Thank you, Mr. Chief Justice, and may it please the Court:
New York’s highest court, in a case similar to this one, remarked that until quite recently, it was an accepted truth for almost everyone who ever lived in any society in which marriage existed —
CHIEF JUSTICE ROBERTS: Mr. Cooper, we have jurisdictional and merits issues here. Maybe it’d be best if you could begin with the standing issue.
It seemed unnecessary on the Chief Justice’s part, but okay, he’s the “umpire,” and that’s the way he apparently was going to call the game. But then it came time for the other team to bat. Attorney Ted Olson, who challenged the constitutionality of Prop. 8 and won at the Ninth Circuit Court of Appeals, got up and began his presentation:
MR. OLSON: Thank you, Mr. Chief Justice, and may it please the Court:
I know that you will want me to spend a moment or two addressing the standing question, but before I do that, I thought that it would be important for this Court to have Proposition 8 put in context, what it does. It walls off “gays” and lesbians from marriage, the most important relation in life, according to this Court, thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second rate, different, unequal, and not okay.
CHIEF JUSTICE ROBERTS: Mr. Olson, I cut off your friend before he could get into the merits.
So apparently, the “unbiased” umpire was not going to call it the same way for both sides. He allowed Mr. Olson to complete his full thought with more than twice as many words before he interrupted. Mr. Olson got to frame the issue the way he wanted. The Chief Justice said right after that he was trying to be fair, but it did not seem fair at all to this humble listener.
Some may not take issue with this, but in court, the framing of the issue could be as important as anything else. So I do not take this misstep lightly.
The Court’s interest in standing has smelled fishy ever since they announced it. Truthfully, it seemed to have the aroma of the Chief Justice all over it. It might have been the awful after-taste of the healthcare cases, but it seemed like an insurance plan to be able to dodge the issue if they couldn’t take the heat.
That way they could rule for same-sex “marriage” without ruling on marriage.
Here is the crux of the standing issue. The initiative process in California is started by the people of California. It is, indeed, designed to give the people a way to “overrule” the action or inaction of elected officials who simply refuse to adhere to the will of the people – just like the case of Prop. 8. The reason proponents of Prop.8 are defending the state’s constitution is because state officials refused to defend it.
The standing issue went all the way to the Supreme Court of the State of California, and they said that, indeed, the proponents of Prop. 8 are the exact group to defend the measure according to the state constitution.
If the Court were to go this route and say that the proponent of Prop. 8 do not have standing, they would be encouraging every state executive and legislative branch who does not like what “we the people” decide to just ignore the law. They would have effective veto power over initiatives brought by the people.
Mr. Cooper did his best to frame the issue after the justice’s probing of the standing issue.
The question before this Court is whether the Constitution puts a stop to that ongoing democratic debate and answers this question for all 50 States. And it does so only if the Respondents are correct that no rational, thoughtful person of goodwill could possibly disagree with them in good faith on this agonizingly difficult issue.
The justices should have no problem answering that question in the negative. But it seemed clear that Justices Ginsburg, Breyer, Sotomayor, and Kagan were not interested in the people and their role as judges. They were starting from the assumption that homosexuals are being unconstitutionally discriminated against and were looking for the best way to convince one of the other justices to come along and grant the most favorable ruling for same-sex “marriage.”
They had an audience of two instead of one, as many experts expected – not only Justice Kennedy, but Chief Justice Roberts, as well. Not many want to admit it yet, but we seem to have two swing votes in the Court now.
Justice Ginsburg seemed to be offering them to rule for same-sex “marriage” but limiting the ruling to California. For Justice Breyer the question seemed to be how much do we do now and how much do we do later. Sotomayor and Kagan seemed to want it all now.
Justices Scalia, Thomas, and Alito, appear to stand firmly on the Constitution and the people’s right to define marriage. Unsurprisingly, Scalia seemed to have the best command of the issue. When Mr. Cooper hesitated at Justice Kennedy’s inquire into the specific harms, he said:
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.
No one dared answer that. Frankly, I wish Mr. Cooper would have covered many other things here. What about religious liberty, for example?
When Mr. Olson talked about the merits of the case, he immediately went to the preposterous argument that traditional marriage’s only purpose is to discriminate against homosexuals. Thankfully, the Chief Justice was right on him:
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 seemed clear that at least that view will not be coming from the Supreme Court, as it has from other courts, that the only reason for traditional marriage is discrimination.
Moments later, Justice Scalia zeroed in on the real question the Justices face: that they are looking to invent a constitutional right out of thin air:
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?
After much dodging and, smoke and mirrors by Mr. Olson we heard a very revealing exchange:
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.
Ah, and the evolving Constitution emerges, once again. They can’t fall for that once again, can they?
Audio and transcript of oral arguments can be found here.