The hardest question from the bench at the gay-marriage arguments Tuesday was posed by Chief Justice Roberts. The proponents of gay marriage argued that California had excluded same-sex couples from the institution of marriage; the opponents insisted that allowing same-sex marriage would fundamentally change the institution in ways that cannot be predicted. But because California allows same-sex "civil unions" with all the rights of marriage, both sides agreed that the heart of the case (Hollingsworth v. Perry) was a dispute over the meaning of one word: "marriage."
Disputes over words engage Roberts above almost anything else. He said to former Solicitor General Theodore Olson, arguing for the foes of the anti-gay marriage Proposition 8: "If it's just about the label, you can tell a child that someone has to be their friend. They may say they are a friend, but you are changing the meaning of the label."
At the heart of the case, then, is the question of whether a constitutional right to same-sex marriage is just another step on a steady road to equality for all, or a sharp turn into what Justice Anthony M. Kennedy called "uncharted waters." Charles Cooper, representing the supporters of Prop 8, warned that there may be monsters ahead: "The Plaintiffs' expert acknowledged that redefining marriage will have real-world consequences, and that it is impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be. And among those real-world consequences, Your Honor, we would suggest are adverse consequences." In such a case, he argued, "it would hardly be irrational" for California voters to say, "I think its better for California to hit the pause button."
Kennedy, however, reminded Cooper that there are consequences either way.
[T]here's substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more. On the other hand, there is an immediate legal injury or legal -- what could be a legal injury, and that's the voice of these children. There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?
That question should be settled by the political process, Cooper said. Allowing same-sex couples to marry, he argued, will "refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples."
Justice Elena Kagan jumped on this point, asking whether the state could then outlaw marriage between partners above the age of 55. "I can assure you that if both the woman and the man are over 55, there aren't a lot of children out of it," she said. Cooper gracefully turned the point. "Very few men outlive their own fertility," he said. Marriage would restrain these aging Lotharios and "make it less likely that either party to that marriage would engage in irresponsible procreation outside the marriage."
There are a number of arguments available to the opponents of Proposition 8. Olson took the widest possible one, framed to appeal to conservative justices in libertarian terms. The right to marry, he said, "is not society's right. It's an individual right that this Court again and again and again has said the right to get married, the right to have the relationship of marriage is a personal right. It's a part of the right of privacy, association, liberty, and the pursuit of happiness."
Justice Scalia wanted to know where the right came from. "When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometime after Baker" -- the 1972 case in which the Court dismissed a claim for gay marriage as not posing a "substantial federal question"? Olson tried to wriggle out by asking in response, "When did it become unconstitutional to forbid interracial marriage? When did it become unconstitutional to assign children to separate schools?"
Scalia replied, "It's an easy question: at the time that the Equal Protection Clause was adopted." He told Olson not to answer his question with a question.
"There's no specific date and time," Olson finally said. "It's an evolutionary cycle." Scalia's vote was never up for grabs, but the answer gave him part of his dissent -- Olson was making the kind of argument Scalia hates, one based on the idea of a "living Constitution."
Solicitor General Donald Verrilli urged the Court to hold that distinctions based on sexual orientation are subject to "heightened scrutiny," meaning that governments must provide good, specific reasons for making those distinction. "Every warning flag that warrants exacting scrutiny is present in this case," he said. Here, he argued, California could not give good reasons -- its laws already allow same-sex couples every other right.
This triggered what seems to be a major worry for the Court: a decision based on this argument might affect states that already accommodate same-sex couples. "A state that does nothing for gay couples hurts them more than a state that does something," Justice Stephen Breyer said. Yet, he pointed out, Verrilli's brief said it was more likely that a more generous state would lose a gay-marriage case, while one that withholds rights from gay couples would win.
Verrilli responded that such a state would have different arguments before the Court. If it wanted to say that gay adoption was harmful, for example, it could do so if and only if it didn't allow gay adoption. California does allow it, so the argument is not available.
Breyer's comment was just one example of seeming dissatisfaction among the justices with the case that has come to them. What are the implications of a loss for California? If the opinion is written narrowly, it might apply only to that state, or only to more liberal states. If it's written too broadly, it would forestall any debate on the issue.
The more liberal to moderate justices seemed to wish for a way to make the case go away. One such option is the doctrine of "standing" -- the fixed federal rule that parties to a case must have more stake in the outcome than simply agreement or disagreement with a law.
Because California did not defend Prop 8 in the Court of Appeals, its place has been taken by four of the five petitioners who qualified the proposition for the ballot. But what makes them different from any other citizens? the justices asked repeatedly. California law gives them the right to defend their own initiative, Cooper responded.
But federal "standing" rules don't always track state law. Justice Kennedy told Olson that he saw in standing rules a chance for the Court to be cautious without rejecting gay rights:
The problem with the case is that you're really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that metaphor, there's a wonderful destination, it is a cliff. Whatever that was.
But you're -- you're doing so in a -- in a case where the opinion is very narrow. Basically that once the State goes halfway, it has to go all the way or 70 percent of the way, and you're doing so in a case where there's a substantial question on --on standing. I just wonder if -- if the case was properly granted.
The more conservative justices were more eager to grapple with the merits, arguing, again, that the plaintiffs were seeking a charge with unknown effects. "You want us to assess the effects of same-sex marriage, the potential effects on -- of same-sex marriage, the potential -- the effects of Proposition 8," Justice Samuel Alito asked. "But what is your response to the argument which has already been mentioned about the need to be cautious in light of the newness of the -- the concept of -- of same-sex marriage?" It had first been adopted in the Netherlands in 2000, he said; it is "newer than cellphones or the Internet."
"Waiting," Verrilli responded, "is not a neutral act. Waiting imposes real costs in the here and now. It denies to the -- to the parents who want to marry the ability to marry, and it denies to the children, ironically, the very thing that Petitioners focus on is at the heart of the marriage relationship."
The Court seemed narrowly divided. Chief Justice Roberts is a hard man to read, but he was clearly worried about the argument that gay marriage is a fundamental change. Kennedy clearly does not want to injure anyone, especially those adopted children in California.
Dismissal of the case without a decision would mean further litigation over Prop 8; but with a powerful District Court opinion still in effect against it, the measure probably could not survive. The Court would leave the larger issue for another day.
Sometimes, against all the odds, American law really does speak to the better angels of our nature. Yesterday's argument had none of the ugliness that marred last-year's health-care arguments: no harassment of counsel, no hostile cross-talk, no bursts of temper. Justice Scalia left his sarcasm arrows in his quiver. That was a victory for civility, which had been in short supply last term. Whether equality will also win a victory was much harder to predict.