The Calm before the Storm: Same Sex Marriage Uncharted Waters for the Supreme Court

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The U.S. Supreme Court has begun to hear oral arguments on both sides of the Prop 8 ban after the proposition passed in November of 2008 thereby reversing by popular vote the state Supreme Court’s decision to recognize marriage equality just months earlier. As Justice Anthony Kennedy on Tuesday commented, the prospect of same sex marriage is “uncharted waters.” According to Huff Post, Kennedy commented, “And you can play with that metaphor,” and  continuing that in that consideration, “There’s a wonderful destination” or “a cliff.” Kennedy acknowledged that the issue of same sex marriage is fairly new, but the immediate legal harm to those same sex couples who cannot marry is apparent as the voices of thousands of children of same sex couples is an important aspect of the case. Kennedy went so far as to tell Charles J. Cooper, representing supporters of Prop 8, that: “They [the children] want their parents to have full recognition and legal status.  The voice of those children is considerable in this case, don’t you think?” Kennedy also casts doubts on Prop 8 and same sex marriage bans in general believing that it discriminates against gays and lesbians. Before the justices can discuss the merits of the constitutional case, Chief Justice John Robers told both advocates to argue whether the parties had legal standing to defend Prop 8 as the liberal bloc — Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan –believe Prop 8 supporters could not represent the state of California after the Governor and Attorney General refused to defense the law where the Republican appointed  members — Chief Justice Roberts and Justices Kennedy, Antonin Scalia and Samuel Alito — agree with the California Supreme Court which ruled Cooper’s clients could represent the state’s interest.

When the arguments reached the constitutional merits, the ideological alliances switched according to Huff Post. As Sotomayor asked Cooper, “Can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the government could make? Denying them a job, not granting them benefits of some sort, any other decision?” And when Cooper responded with “responsible procreation”, Kagan commented, “If you are over the age of 55, you don’t help us serve the government’s interest in regulating procreation through marriage. So why is that different?” The debate became interesting when Scalia asked Ted Olson, the lawyer for the two same sex couples challenging Prop 8, “When did it become unconstitutional to exclude homosexual couples from marriage? 1791 [when the Bill of Rights was ratified]? 1868, when the 14th Amendment was adopted?” Olson responded with, “When did it become unconstitutional to prohibit interracial marriages?” Scalia responded with, “At the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question.” Olson untimaly answeres that the argument of same sex marriage is on an evolutionary cycle. Alito’s issue with Olson’s argument was, “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,” Alito said. “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?” Ginsburg has issues with Coopers argument which relies on a case from 1971, Baker v. Nelson, where the Supreme Court dismissed a Minnesota man’s attempt to marry his male partner lacking a substantial federal question at a time when same sex intimate conduct was considered criminal.

Kennedy, who is consider the tie breaker vote on the panel, was trying to determine whether a same sex marriage ban could be viewed as gender based and determined by the end of the arguments that both sides had legitimate reasons to sue. On one hand Kennedy sees that Prop 8 supporters have standing to sue, but the right to marry especially the federal constitutional right that would extend to all states compelled him to dig a little deeper. Kennedy asked Cooper, “Why [do] you think we should take and decide this case?” After hearing the answer, Kennedy sided with his conservative colleagues that Cooper’s clients had the right to be in court, while siding with his four liberal colleagues who believe the Constitution mandates marriage equality. That leaves Kennedy who is the fifth vote in the case to man these uncharted waters and according to Huff Post if his history is any indication he just might take the plunge. The final decision is expected by July in the case, Hollingsworth v. Perry.

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