'Uncharted waters'

WASHINGTON—In a packed Supreme Court courtroom Tuesday morning, Justice Anthony Kennedy was the voice of caution to the lawyer arguing that all states must recognize the right of same-sex couples to marry. And Kennedy, who is all over the political map, may be the key to save the traditional marriage laws that have passed in 38 states.

“You’re asking … for us to go into uncharted waters,” Kennedy told Ted Olson, the lawyer challenging California’s Proposition 8, a voter-passed initiative from 2008 that approved a state constitutional amendment defining marriage as between a man and a woman. Kennedy added that it wasn’t clear whether the uncharted waters would lead to a “wonderful destination” or a “cliff.”

Of the two marriage cases the high court hears this week, the case Tuesday, Hollingsworth v. Perry,poses the greatest threat to traditional marriage laws across the country, because if the justices strike down California’s constitutional amendment as discriminatory, every state marriage law would be called into question. But after Tuesday’s arguments, that seemed unlikely.

All of the justices—with the exception of Justice Sonia Sotomayor—were reluctant to bluntly call Proposition 8 a discriminatory law, and thereby give homosexuality the same protective status as race. Even the most liberal justices sought to find other ways to decide the case, like throwing it out on issues of standing. Kennedy at one point suggested the Supreme Court shouldn’t have agreed to hear the case in the first place.

Justice Antonin Scalia had a one-on-one confrontation with Olson about drawing parallels between homosexuality and race.

“When did it become unconstitutional to exclude homosexual couples from marriage?” Scalia asked.

“When did it become unconstitutional to prohibit interracial marriages?” Olson responded.

Scalia said that was unconstitutional under the Equal Protection Clause of the Constitution. “Don’t give me a question to my question. You are saying it is now unconstitutional. Was it always unconstitutional?”

“When we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, …” Olson responded.

“When did that happen?” Scalia asked.

Charles Cooper, the lawyer defending Proposition 8, argued that homosexuals as a class are “amorphous. It defies consistent definition. It does not qualify as an accident of birth.”

Cooper argued the country was in the midst of an “earnest debate” about marriage and the court should allow that debate to “further mature” to avoid a “judicial redefinition of marriage.” Justice Samuel Alito Jr. jumped on that line of thinking, pointing out that same-sex marriage wasn’t a concept until about the last decade. “An institution that is newer than cell phones or the internet … why should it not be left to the people?” he asked, probably in an appeal to Kennedy, a big advocate of states’ rights.

Cooper’s other argument, which seemed to draw favor from a majority of the justices, was that the social science on the effects of gay marriage on children, for example, was too new for the court to draw any conclusions.

“We have five years of information to weigh against 2,000 or more,” concurred Kennedy.

But Cooper’s arguments about the government’s interest in protecting traditional marriage because it alone results in procreation did not gain much traction. Same-sex marriage, he said, would “refocus the purpose of marriage away from the raising of children to the emotional needs of adults.” The justices pointed out, in not so many words, that heterosexual marriage is already commonly divorced from the purpose of procreation.

Family norms have already changed in California, even under Proposition 8. The state, for example, allows same-sex couples to adopt. Because gay couples have all the benefits of marriage without the term “marriage,” Kennedy argued it seemed strange to “penalize” California for “not going far enough.” Justice Ruth Bader Ginsburg concurred with Kennedy, asking at one point, “A state that has made considerable progress has to go all the way?”

Some wondered whether Chief Justice John Roberts might be open to expanded rights for gay couples, given some of the cases he worked on as a private attorney. But he put that speculation to rest in the arguments, saying that traditional marriage was not “exclusionary” to begin with but rather the “institution developed to serve purposes that by their nature did not serve homosexual couples.”

The arguments lasted well over an hour. The justices will hear arguments Wednesday in a challenge to Section 3 of the Defense of Marriage Act, the federal law that defines marriage as between a man and woman for the purpose of federal benefits.

Listen to a “Marriage on Trial” report on WORLD’s radio news magazine The World and Everything in It.