The Supreme Court listened to arguments in the first of two cases concerning same sex marriage. Defenders of same sex marriage argue that Prop 8 and DOMA are unconstitutional under the equal protection and due process clauses of the Constitution.
Defenders of DOMA and Prop 8 claim states’ rights, democracy and tradition should prevail over the 5th and 14th Amendments.
To get more stories like this, subscribe to our newsletter The Daily.
Observers noted one aspect of these cases that may provide cover for Supreme Court Justices who would on one hand, rather avoid ruling on the constitutionality of same sex marriages and at the same time would prefer to avoid being on the wrong side of history.
Today, the Court considered arguments in the Proposition 8 case, and will consider arguments in U.S. v. Windsor which seeks to uphold the Defense of Marriage Act (DOMA) tomorrow.
The Court could decide that the Plaintiff doesn’t have standing, as noted by Scotusblog: “First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing. That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8. Another case with different petitioners (perhaps a government official who did not want to administer a same-sex marriage) could come to the Supreme Court within two to three years, if the Justices were willing to hear it.”
The Court has a basis to conclude that the Plaintiff in the Prop 8 case doesn’t have standing.
As noted during an exchange between Justice Ginsberg and Charles Cooper, if the Court concludes that proponents of a ballot initiative have standing in this case, it would be the first time.
JUSTICE GINSBURG: Have we ever granted standing to proponents of ballot initiatives?
MR. COOPER: No, Your Honor, the Court has not done that.
One would think that if the court was to rely on Article 3 of the constitution and precedent, the Court’s ruling on standing should be self-evident. The discussion went on to consider the possibility that a state could delegate authority to proceed on its behalf, which raises other issues. As noted by Chief Justice Roberts, ”A State can’t authorize anyone to proceed in Federal court because that would leave the definition under Article III of the Federal Constitution as to who can bring — who has standing to bring claims up to each State. And I don’t think we’ve ever allowed anything like that.”
Even if it was plausible for a State to authorize someone else to proceed, that isn’t what happened in California. After the State’s Supreme Court ruled that Prop 8 is unconstitutional, then Governor Arnold Schwarzenegger said the government would not pursue the matter. Proponents of the ballot initiative took it upon themselves to continue to battle.
If the Court relies on precedent on the issue of standing, it means that that State’s Supreme Court ruling that Prop 8 is unconstitutional will be upheld, but of course, will only apply in California. If the Court grants standing to Prop 8’s proponents, it will not only be setting a new precedent when it comes to standing, but it also means the Court will need to consider the merits of the case.
Simply put, opponents of Prop 8 argue that the ballot initiative violates the equality clause of the constitution. Proponents argued state rights, democracy, tradition and a rather archaic definition of the purpose of marriage.
In many respects, this case is a contemporary version of Loving v. Virginia – with civil libertarians arguing actual law while defenders rely more on tradition, popular opinion and states’ rights. Yet, our history shows that none of these arguments justify upholding laws that violate the equality clause or any other provision in the U.S. constitution. Tradition doesn’t in itself mean a law is constitutional nor do the reasons on which the tradition is based.
As noted in the U.S.’s Amicus brief ”Rather, petitioners rely on what they describe as “plausible reasons” for California’s adherence to the traditional definition of marriage (Br. 61 (citation omitted)), including the interests in responsible procreation and child-rearing (Br. 36) and proceeding cautiously (Br. 48), that indirectly implicate an interest in the traditional definition. That is for good reason: reference to tradition, no matter how long established, cannot by itself justify a discriminatory law under equal protection principles… As this Court has observed, “laws once thought necessary and proper” may in fact “serve only to oppress,” and, “[a]s the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
If the Court’s comments and questions regarding the claim that procreation and child rearing are the traditional “purpose” of marriage count for anything, the tradition argument is far from persuasive. Justice Breyer’s question pointed to the obvious flaws in the presumption that marriage is a “tool” for procreation, therefore providing a basis to preclude gay marriage. In fact, during an exchange with Justice Kagan, Charles Cooper had to concede the obvious flaws in his argument.
JUSTICE KAGAN: ”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?”
MR. COOPER: “No, Your Honor, it would not be constitutional.”
While the prospect of banning marriages when both people are over the age of 55 raises a few issues, it goes to the point that procreation is not the basis for marriage. If it were then people who are likely to have surpassed the prime age for child bearing, or for that matter, have fertility issues would be precluded from being married. Even Justice Scalia had to acknowledge the constitutional problems that come with the assumption that marriage is a tool for procreation.
”I suppose we could have a questionnaire at the marriage desk when people come in to get the marriage — you know, Are you fertile or are you not fertile? I suspect this Court would hold that to be an unconstitutional invasion of privacy, don’t you think?”
I’m reminded of the “traditions” offered to defend laws that were ultimately struck down in Loving vs. Virginia and for that matter, the separate but equal doctrine that was also struck down by the Supreme Court.
In Loving. V. Virginia, proponents of laws that banned interracial marriage claimed “racial purity” to justify banning interracial marriages in which one of the partners was white. However, the laws, as stated, didn’t apply if the parties involved were both “colored” (as was the terminology at the time) but of different races.
§ 258 of the Virginia Code:
Leaving State to evade law. – If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in § 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage.
Section 259, which defines the penalty for miscegenation, provides:
Punishment for marriage. – If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.
Other central provisions in the Virginia statutory scheme are § 20-57, which automatically voids all marriages between “a white person and a colored person” without any judicial proceeding, [n3] and §§ 20-54 and 1-14 which, [p5] respectively, define “white persons” and “colored persons and Indians” for purposes of the statutory prohibitions. [n4]
Here too, proponents of Prop 8, claim that marriage is a tool for procreation. However, that standard only applies within the context of justifying a ban on same sex marriage. In other examples in which marriage and procreation would not go hand in hand, such as marriages when both partners are over a certain age or at least one of the partners is infertile, proponents of Prop 8 acknowledge it would be unconstitutional to ban such marriages.
Prop 8, as was the case of Virginia’s ban on interracial marriages when one of the parties was white have little to do with preserving the “tradition” of marriage and everything to do with preserving the “tradition” of bigotry.
‘Proponents of Prop 8 point to the fact that California recognizes same sex relationship with “domestic partnership” or “civil unions” and in reality, same sex couples enjoys the same rights as married couples do. Yet, this reminds me of the separate but equal doctrine. As that doctrine assumed that segregation of races in schools doesn’t preclude equality, Prop 8 assumes that segregation between heterosexual and same sex marriages will produce equal results.
Yet, some analysts suggest it’s likely, that if the Court doesn’t dismiss the case based on the Plaintiffs lack of standing, they will:
dismiss the case because of an inability to reach a majority. Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him. Others on the left may agree. That ruling would leave in place the Ninth Circuit’s decision.
We saw the flaws in separate but equal when it came to education. Whites only schools provided better education than those available to children who were of other races. Similarly, “marriages” and “civil unions” are seen as “different” and ultimately unequal “institutions.” While “marriage” is recognized by society, it also affords certain understandings in Federal law, that civil unions may not – as Edith Windsor knows very well. It will be interesting to see if the Court approaches the inequality of civil unions when applied in Federal law in tomorrow’s arguments in U.S. v. Windsor.
I also have to wonder how the notion of a Federal law banning same sex marriage, as DOMA does, doesn’t seem to bother those who argue that marriage should be defined by the states. Not that consistency is an issue for people whose real interest in preserving “traditional marriage” whose real interest is in preserving traditional bigotry.
Image: zeldalily
Former contributor.
