After Cautious Argument, Don't Look for Historic Ruling on Same-Sex Marriage

The justices seem to be looking for a way out of a broad ruling. Can they end the Proposition 8 case in California without ending the cause?
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Ted Olson argues in front of the Supreme Court on Tuesday (Art Lien/Reuters)

There were no great surprises Tuesday morning during oral argument over Proposition 8, California's beleaguered same-sex marriage ban. None of the justices of the United States Supreme Court shared an epiphany on the topic. They are all precisely who we thought they were, who they have always been. This is the most conservative Court in 75 years -- the most conservative federal appeals court in the nation -- and it showed, both in the ideology of the justices' questions and in the reluctance they expressed to issue a broad ruling.

Nor did the tone and tenor of the argument itself seem likely to generate an historic ruling. Indeed, one of the remarkable aspects of the give-and-take was how lukewarm is the federal government's position. As the conservative justices pointed out, the Obama Administration seems to want it both ways -- to preclude California from discriminating against same-sex couples, but to continue to allow other states to do so. This may make sense politically -- half the country still opposes same-sex marriage, after all -- but, legally, it's quite inconsistent.

So Justice Antonin Scalia and Samuel Alito are still outwardly hostile to any recognition of same-sex marriage rights. Justice Clarence Thomas is silently so. And the Court's four liberal members all seemed openly supportive of same-sex marriage rights -- or are at least hostile to the idea that Proposition 8 can survive. In this sense, the oral argument, at times dramatic, at times mundane, told us little that we didn't already known going into it. The Court is sharply divided on the topic. Same as it ever was. Did you really expect something different?

As it was last year with the federal health care cases, the fight over Proposition 8 will likely be decided by the two justices who were often more subtle than the rest Tuesday. Chief Justice John Roberts, the crafty politician who isn't inclined to support gay marriage rights, poked around the edges, searching for a path to end the case without necessarily ending the cause. And Justice Anthony Kennedy, who will almost certainly be in the majority, seemed unhappy with all of the options available to him. Here is the link to today's audio. Judge for yourself.

The Court is usually eager to resolve cases and controversies on the narrowest grounds possible, and if the justices are inclined to do so, here there are several options available to them. The argument had barely begun, for example, when the justices began peppering Charles Cooper, the attorney defending Proposition 8, with questions about whether he even had a legal right -- standing -- to be in court. California officials, remember, declined to defend the measure once it was deemed unconstitutional in 2010.

"Have we ever granted standing to proponents of ballot initiatives?" asked Justice Ginsburg. "No, your honor," Cooper answered. But then he reminded the justices that the California Supreme Court permitted his clients to defend Proposition 8 even though they aren't directly responsible for doing so.

The justices also raised the standing issue at length with Ted Olson, who represents the couples who challenged Proposition 8, and to a lesser extent with Donald B. Verrili Jr., the Solicitor General of the United States. If the justices dismiss the case on this technical ground, Proposition 8 will still be void -- and still subject to future litigation.

Another disappointing component of the argument was its lack of fidelity to the record below. For example, throughout the long history of this dispute, when asked for the justifications for treating same-sex couples differently from opposite-sex couples, Cooper has never had a good answer. In fact, the trial judge in the case long ago chastised him for failing to support his assertions with good evidence.

The same dynamic unfolded again Tuesday after Justice Elena Kagan asked Cooper a question about what real-world consequences "redefining marriage" would have. The attorney hemmed and hawed and it was left to Justice Scalia to bail him out. It's good to have friends in high places. But what about the facts?

Olson, as comfortable before the Court as any living lawyer, also has friends on the bench. And -- in this case, anyway -- foes, too. The chief justice asked him why the outlier in California was not Proposition 8, which evoked centuries of tradition, but rather the state supreme court ruling which preceded it, which recognized same-sex marriage rights.

"The California Supreme Court, like this Supreme Court, decides what the law is," Olson shot back. "The California Supreme Court decided that the Equal Protection and Due Process Clauses of that California Constitution did not permit excluding gays and lesbians from the right to get married."

What followed was an exchange between Olson and Justice Scalia wherein the justice found a way to gin up his favorite talking point about constitutional interpretation. "When did it become unconstitutional to exclude homosexual couples from marriage?" Justice Scalia asked. "1791? 1868, when the Fourteenth Amendment was adopted?" And so on.

Again, Olson shot back with two questions of his own. "When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?" At least Justice Scalia didn't respond with any more homophobic references.

Finally, from Verrilli, the solicitor general, there was this: "We are not taking the position that it [same-sex marriage] is required throughout the country," he told the justices. "We think that that ought to be left open for a future adjudication in other States that don't have the situation California has." In other words, Justice Scalia asked him, if a state allows civil unions, it must go further and allow same-sex marriages? Yes, the solicitor general said.

So states that are more compassionate toward same-sex couples have more responsibility to them than do states which are not. America, what a country.

The consensus from Court watchers Tuesday seems to be that the Court is itching for a way to avoid a sweeping ruling on same-sex marriage. I can buy that. Such a ruling would be terribly disappointing to same-sex marriage advocates (and probably not beloved by same-sex marriage foes, either). But in this seminal case, to paraphrase a former government official, you go to court with the justices you have. And the justices America has right now seem ready to wait a while longer to recognize marriage equality. Charles Cooper, the lawyer without any facts to back up his argument, may end up winning in the end.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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