Yesterday, the Supreme Court heard oral argument in the case of Hollingsworth, et. al., v Perry- the Proposition 8 gay marriage case. As the press has reported, the scene outside the Court was one of a circus with plenty of rainbows and plenty of cross-dressing gay people and their supporters. Leaving aside the visuals, the tone of the argument was one of concern that the Court may be moving too fast in this area. Three lines from the oral argument summarize the argument. The first was by Anthony Kennedy who suggested that if the Court issued some broad gay rights proclamation in the area of marriage, they would be "wading into uncharted waters." Chief Justice Roberts noted that the institution of gay marriage was relatively new and was, in fact, younger than the cell phone and the Internet. And finally, Justice Sotomayor noted that generally the Court allows these issues to percolate in the legislative branch before they take up the issue. She even mentioned that it took the Supreme Court 50 years to address racial segregation.
Roberts' comment was predicated on the lack of sociological evidence that proves same sex marriage is advantageous or a disadvantage to society as a whole. Although there were laughs in the courtroom regarding the concept of the institution of marriage being an incubator for the procreation of life, this illustrates the crux of a state's justification for banning gay marriage. If we accept the proposition that the primary purpose of marriage is to provide a stable environment for procreation and that this is its primary purpose almost to the exclusion of other factors, then what is to stop a state from banning the marriage of two infertile opposite sex people? This is an absurd liberal over-extension of the argument akin to the slippery slope conservative argument that allowing same sex marriage will lead to marrying animals and the like. Both arguments are a diversion from the bottom line constitutional question of whether states have a right to determine the parameters of issuing a piece of paper- the marriage license- and then everything that goes along with that piece of paper. Incidentally, it was Kagan who brought up the idea of banning marriages of infertile individuals.
However, the Roberts comment brings up a very important fact- same sex marriage is a relatively new concept. Of course, it has been accepted in other countries and one can suppose sociological studies from those countries that are more longitudinal in nature can be consulted. But, that is not the proper role for the Supreme Court and better left for the legislatures to decide based on the evidence. Where the gay community generally fails is that they can provide very little conclusive evidence that same sex marriage necessarily provides the same or even better atmosphere for the rearing of children. What the gay community argues is a circular type of logic. The reason for failure of gay couples in child rearing is not the fact that there are two fathers or two mothers but because society has not accepted the concept of same sex partnerships and that is the reason for failures. In other words, their homosexuality is not at fault; society's perception of homosexuality is at fault.
Sotomayor's comment about allowing the issue to percolate in the legislative branch and equating it with the Supreme Court's history in racial segregation simply underscores the Roberts comment. When Plessy vs. Ferguson was decided in the 1890s, it established the concept of separate but equal. This case involved a railroad issue but the concept expanded to basically everything that encompasses the worst of Jim Crow laws- separate bathrooms, separate lunch counters, separate schools, etc. It was not until 50 years later when there was ample sociological evidence on the bad effects of separate but equal that the Supreme Court acted, at least in the area of public education. Personally, I do not believe that same sex marriage is the great civil rights issue of our time as the gay community and its backers would have us believe. Still, one has to question the appropriateness of the Supreme Court relying on sociological studies to reach a decision. Reading both Plessy and Brown v. Board of Education, for example, illustrates that Plessy is actually the better piece of constitutional scholarship while Brown is a great piece of sociological evidence citations. Even still, the Supreme Court largely got it right in 1954 although subsequent "solutions" leave a lot to be desired.
And most of these comments feed into a general feeling one gets from the Court that perhaps 2013 is not the right time to decide this issue through some sweeping, grand proclamation of gay rights in the context of marriage. Listening to the audio and reading the transcript, one is struck with the utter lack of reference to precedent in this area which underscores the constitutional novelty of the concept. Ginsberg herself has noted in legal journals and speeches that moving too fast in an area before the legislative process has completely played out only leads to a backlash and controversy later. Of course, she was referring to the abortion issue and Roe v. Wade. By 1973, strict laws against abortion were falling and being reformed and liberalized. Likewise, 40 years later we see the exact same trends with the gay marriage issue. Since Massachusetts first allowed gay marriages, eight more states and the nation's capital now allows it. Just this past election, four states laid the groundwork for or actually allowed gay marriage within their borders- a stunning victory for the gay rights community no matter how one looks at it. Most surprising of all was the vote in Maine where gay gay marriage was approved a couple of short years after voters disapproved of it.
Which brings us to the Kennedy statement. If, as the polls supposedly show and the gay community and civil rights community suggests, same sex marriage is becoming more acceptable, then allowing that acceptance to be reflected through the legislative process is an inevitability. Why, then, should the Supreme Court intervene?
When the Supreme Court takes a case, it is usually done so by presenting certain questions for the Court to resolve based on the opinions of the lower courts. Although not rare, one needs to view questions not presented by the litigants but by the Court itself with suspicion. Three recent decisions come to mind where the Court added a question that was supposedly either settled or not at issue in the lower courts. The first was the Obamacare case when the Court added whether the mandate was a "tax." This issue had been settled in the negative in the lower courts and neither party argued that issue at the Supreme Court which required the Court itself to appoint a proxy to argue the issue. We know the unfortunate result of adding that question because it used as a justification for upholding the law since it could not withstand scrutiny under the Commerce Clause. The second case is one heard last term and then re-argued in October, 2012 with an added question (there has been no decision yet). That case involved the question of whether a foreign national living in the United States can sue a corporation for alleged human rights abuses in a foreign country. The question added involved a law from the 1790s! The other case was Citizen's United.
When the Court adds a question supposedly resolved or not at issue, it signals some discord on the Court regarding the original grant to take the case. Several times during oral argument, despite which side was talking, Justice Kennedy kept coming back to this issue. The issue was whether the case should have been granted in the first place and if so, does the appellant have standing before the Court. Both sides argued that they did. The appellant obviously thinks so because they perceive a "harm" to the voters of California while the respondent believes so because they perceive a "harm" to gay couples who want to marry. Yet, this added question will likely be the justification to side step the more global position of a national acceptance of same sex marriage. If they rule that the appellant lacks standing or that the case should not have been granted in the first place (they can choose the second option without an opinion or comment), they sidestep the larger issues. The practical effect is that same sex marriage will come to California, but California only. It would not be binding or have any effect on any other jurisdiction. In short, it would be an unofficial affirmance of the lower court decisions without saying why.
The Roberts Court has a tendency to narrowly rule on cases which, at its heart, is a conservative idea. Liberals also assert the Roberts Court has a tendency to "shut the courthouse door" on certain litigants. Sotomayor in her dissent in the Concepcion v. ATT case a few terms back stated so bluntly. By deciding that the appellants here- backers of Proposition 8- lack standing (and there IS precedent to justify that finding), they leave the larger issue for another day and, again, same sex marriage, in practical effects, becomes a reality in California, but California only. However, they may just have to address the larger issue, if not in the Windsor case today, then certainly in the perhaps not too distant future.