At the U.S. Supreme Court on Tuesday, the moment had finally arrived. After four years of litigation in the lower courts, the Supreme Court was hearing a challenge to California's ban on same-sex marriage. But minutes into oral arguments, it became clear that the justices may not give either side the clear-cut victory it wants.
All eyes were on Justice Anthony Kennedy, widely viewed as a swing vote and very possibly the deciding vote in the case, but he seemed reticent about the court dealing with the California case at all. "I just wonder if the case was properly granted," he mused.
The showdown at the same-sex-marriage corral seemed to get derailed from the get-go by the procedural issues involved in the case — a legal test of the ballot initiative banning same-sex marriage that was passed by the California voters in 2008.
Charles Cooper, the lawyer defending the California ban on same-sex marriage, got just 34 words out of his mouth before he was interrupted by Chief Justice John Roberts, who instructed him to address the boring, but essential procedural question: Should the case be in the Supreme Court at all?
The state of California has refused to defend the ban, known as Proposition 8. So, with the state declining to defend the law, did the sponsors of the ballot initiative have legal standing to substitute for state officials in defending the law?
Justice Ruth Bader Ginsburg asked Cooper, "Have we ever granted standing to proponents of ballot initiatives?"
No, he conceded, but in this case the California Supreme Court ruled that the initiative sponsors do have legal standing under state law.
To Proposition Proponents, A Question For The Public
The justices went back and forth on the issue for 15 minutes before Cooper was allowed to move on to his central argument. Public opinion and knowledge about same-sex marriage is "changing rapidly," he said.
The question the court has to answer, he said, "is whether the Constitution puts a stop to that ongoing democratic debate and answers this question for all 50 states."
Pressed by Justice Sonia Sotomayor, Cooper conceded that it would be unconstitutional to discriminate against gays and lesbians on matters such as employment. If that is true, she asked, then why can homosexuals be singled out for different treatment in their ability to marry?
"At bottom," Cooper said, "same-sex couples and opposite-sex couples are simply not similarly situated," and it is reasonable to believe that over time, the institution of marriage itself would be harmed if marriage were redefined as a "genderless institution."
Justice Elena Kagan followed up, asking what exactly is the "harm to the institution of marriage or to opposite-sex couples? How does this cause and effect work?"
That's not the right question to ask, Cooper responded. "The correct question is whether or not redefining marriage to include same-sex couples would advance the interests of marriage?"
It's All Politics
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