The Supreme Court is hearing oral arguments this week to determine the constitutionality of gay marriage. On Tuesday, the Justices considered the constitutionality of California’s gay marriage ban proposition 8 and on Wednesday, they heard arguments related to the Defense of Marriage Act.
The defenders of Proposition 8 appear to be arguing their position with little to work with as far as convincing arguments go to uphold California’s ban. At the oral arguments, key exchanges with Justices Sonia Sotomayor and Elena Kagan highlighted the fact that the anti-gay marriage arguments are increasingly untenable.
On Tuesday, Justice Sotomayor said, "Outside of the marriage context, 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?"
Basically, she emphasized that the federal government doesn’t have a good enough reason to put gay couples in a separate class awarding them a different set of benefits, simply because they are a same-sex couple.
A popular argument put forward by Proposition 8’s defenders is that a same sex marriage isn’t legally valid because there is no possibility of procreation. Charles Cooper arguing on behalf of the petitioners said, “[t]he concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus, refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples.”
Justice Kagan pushed back forcefully saying, “Well, suppose a State said, Mr. Cooper, suppose a State said that, 'Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55.' Would that be constitutional?” When Cooper responded in the negative, the Justice continued, “Because that's the same State interest, I would think, you know. 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?..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.”
Here, the popular argument that gay marriage must be banned because they cannot naturally procreate is reduced to a defense of unequal treatment of gay couples.
On Wednesday, the focus turned to DOMA, the federal law that defines marriage between a man and a woman and prohibits gay couples from receiving the same federal benefits straight couples receive. Similar to the defenses of Proposition 8, the key to the arguments defending DOMA are being revealed as weak and unpersuasive. A key exchange between Justice Elena Kagan and Paul Clement arguing on behalf of the petitioners, illustrated exactly how times have changed since DOMA was passed in 1996.
Clement said, “And what Congress says is, wait a minute. Let's take a timeout here. This is a redefinition of an age-old institution. Let's take a more cautious approach where every sovereign gets to do this for themselves. And so Section 2 of DOMA says we're going to make sure that on full faith and credit principles that a decision of one State.”
To that, Justice Kagan read a House Judiciary Report aloud which said, “Congress decided to reflect the honor and collective moral judgment and to express moral disapproval of homosexuality.” Thus, Congress was not acting to preserve the institution of so-called traditional marriage as between a man and a woman, but instead they were legislating a moral objection to two people of the same sex being able to legally marry.
On both days of oral arguments, all eyes were on the key swing vote—conservative Justice Anthony Kennedy. Like in many other cases, Justice Kennedy is the key 5th vote to make a majority, and while he wasn’t sending any clear messages indicating which way he plans on deciding the case in June, he certainly showed a willingness to push back on the petitioners arguments above on both days. After two days of oral arguments, it looks as though there are five votes to strike down DOMA, but the fate of proposition 8 is less clear.
As we saw with the horribly wrong, Obamacare predictions, it wouldn’t be smart to bet on which way Justice Kennedy decides these cases, but it certainly looks promising that the Supreme Court will issue a ruling that at least in part aligns with the overwhelming support marriage equality has among the American public.