It will be months before we’ll know how the Supreme Court will rule on the Proposition 8 case. But we can glean from today’s Hollingsworth v. Perry oral arguments. Here, in alphabetical order of the Justices, are select quotes.
Given the long history of heterosexual marriage, Justice Alito expresses caution about resolving gay marriage issues with the courts rather than the democratic process:
Traditional marriage has been around for thousands of years. Same-sex marriage is very new. But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? I mean we — we are not — we do not have the ability to see the future.
. . .On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?
Justice Ginsburg recalls case law in which there was a right to marry that was not related to procreation:
Mr. Cooper, we said that somebody who is locked up in prison and who is not going to get out has a right to marry, has a fundamental right to marry, no possibility of procreation.
If the rationale for the superiority of heterosexual marriage is the possibility of procreation, Justice Kagan rhetorically wonders if a heterosexual marriage incapable of procreation is less worthy of protection:
No, really, because if the couple — I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.
Justice Kennedy weighs the well-being of children residing with same-sex parents who would be stigmatized if “marriage” is not used to describe the relationship of their caretakers:
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?
Chief Justice Roberts ponders the historical development of marriage and goes on to critique the endeavor of the Proposition 8 opponents to use the word “marriage” for gay unions:
I’m not sure, 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.
. . . Same-sex couples have every other right, it’s just about the label.. . . If you tell — if you tell a child that somebody has to be their friend, I suppose you can force the child to say, this is my friend, but it changes the definition of what it means to be a friend. And that’s it seems to me what the – what supporters of Proposition 8 are saying here. You’re — all you’re interested in is the label and you insist on changing the definition of the label.
Justice Scalia engages attorney Ted Olson on the concept of an “evolving” Constitution:
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? Was it always unconstitutional?
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.
JUSTICE SCALIA: Well, how am I supposed to know how to decide a case, then.. . . if you can’t give me a date when the Constitution changes?
Justice Sotomayor wonders if the Court should, for now, hold off on ruling at all:
If the issue is letting the States experiment and letting the society have more time to figure out its direction, why is taking a case now the answer? . . . We let issues perk, and so we let racial segregation perk for 50 years from 1898 to 1954.