The Court Gestates on Gay Marriage

March 27, 2013

In yesterday's Supreme Court oral argument about gay marriage, it seemed like the justices thought all the lawyers held untenable positions. That may be the nature of this process, where the jurists test the weak points of each argument, but it seemed particularly true in this case.

Charles Cooper, arguing on behalf of those who want to preserve California's ban on gay marriage, got some deeply skeptical questions from Justice Elena Kagan.  Cooper strangely centered his case on the idea that traditional marriage must be the only legally-sanctioned type of marriage because it serves the state's interest in procreation.  He's right, of course, that only a male-female relationship can produce offspring unassisted. But how that bears on the issue of gay marriage is as mysterious to me as it was to Justice Kagan.  She asked Cooper if the state could ban a man and women who were both over 55 from getting married, since they would not be producing any offspring during their marriage. He agreed the state could not do that, and went on to make a vague point about the unknown future impacts on traditional marriage if gay marriage were legal.  (He also seemed to dispute that the couple would necessarily be childless because men remain fertile in late middle age.  He apparently decided not to dispute the female side of the equation with Justice Kagan, who is probably more familiar with the biology of being a middle-aged woman.)

None of the justices brought up the fact that restricting marriage to a man and a woman would not suddenly cause gay people to sleep with opposite sex partners and have babies.  So there is no added procreative benefit to the restriction.

The justices were also skeptical with Ted Olson, the conservative lawyer arguing in favor of the constitutional right to gay marriage.  The problem for Olson is that forty states now ban the practice, so it is hard to make the case for a sea-change in public opinion, even though the polls have moved significantly.  Justice Scalia ask him "when" gay marriage became Constitutional -- 1789, 1868?  Olson had no clear answer, but pointed out that this question was never asked of other rights in the past.

Also presenting to the Court was Solicitor General Donald Verrilli, on behalf of the government.  Verrilli's position was that it was, essentially, premature for the Court to declare gay marriage a Constitutional right everywhere, but that it should overturn the California law against it.  His position, on the surface, was sound.  California allows gay people to adopt children and recognizes gay civil unions, so it clearly has no problem with gay families. It simply withholds the term "marriage," therefore branding gay people as a somehow inferior class.  But several of the justices, including liberal ones, pointed out that the result of this approach would be to order states who have been fairly progressive on gay rights to go further, while allowing states who have done nothing to continue on their intolerant way.  Verrilli didn't have much of an answer to that, except to say that California should be judged by its own circumstances.

For me, the larger issue is easier morally than it is strategically. Marriage is a personal decision and the government should not exclude a class of people from participating.  Allowing gay people to marry doesn't encourage or discourage straight people from marrying or having kids. But what's the best way to advance that goal? While I strongly sympathize with the desire to have the Court recognize the right of gay people to marry, I am concerned about disturbing a trend toward greater public acceptance of gay marriage by having the Court impose it.  Right now, all the momentum is on the side of marriage equality, but a court order has a way of emboldening opponents (see Roe vs. Wade).  I don't like the idea of leaving constitutional rights in the hands of voters -- I wouldn't want my First Amendment rights left to a public vote -- but I want to follow the path that leads to the most progress.  It's easy for me to say because no one will try to stop me from getting married, but if we can build even greater political consensus it may be the most effective way to advance the rights of gay Americans. But thinking of my gay friends, I'm not at all comfortable with that course, even if my political judgment leans towards it.

Next:  An easier case – DOMA is dumb, and unconstitutional

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