Highlights and Commentary on Hollingsworth v. Perry at the Supreme Court

Here are the highlights of today’s Supreme Court hearing on marriage equality:

MR. COOPER: Yes, Your Honor. The 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.
Suppose, in turn–

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.

JUSTICE KAGAN: 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?


Sotomayor begs the Scalia question.
JUSTICE SOTOMAYOR: Mr. Olson, the bottom line that you’re being asked — and — and it is one that I’m interested in the answer: If you say that marriage is a fundamental right, what State restrictions could ever exist? Meaning, what State restrictions with respect to the number of people, with respect to — that could get married — the incest laws, the mother and child, assuming that they are the age — I can — I can accept that the State has probably an overbearing interest on — on protecting a child until they’re of age to marry, but what’s left?

MR. OLSON: Well, you’ve said — you’ve said in the cases decided by this Court that the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing. And if you — if a State prohibits polygamy, it’s prohibiting conduct. If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status. It’s selecting them as a class, as you described in the Romer case and as you described in the Lawrence case and in other cases, you’re picking out a group of individuals to deny them the freedom that you’ve said is fundamental, important and vital in this society, and it has status and stature, as you pointed out in the VMI case. There’s a — there’s a different –


Quandary of an originalist.  A right is not a right until it’s realized, and a slavishness to precedent is a slavishness to prejudice.

MR. OLSON: The California Supreme Court, like this Supreme Court, decides what the law is. The California Supreme Court decided that the Equal Protection and Due Process Clauses of that California Constitution did not permit excluding gays and lesbians from the right to get married –

JUSTICE SCALIA: You — you’ve led me right into a question I was going to ask. The California Supreme Court decides what the law is. That’s what we decide, right? We don’t prescribe law for the future. We — we decide what the law is. I’m curious, when -when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true.
But don’t give me a question to my question.

JUSTICE SCALIA: When do you think it became unconstitutional? Has it always been unconstitutional?

MR. OLSON: When the — when the California Supreme Court faced the decision, which it had never faced before, is — does excluding gay and lesbian citizens, who are a class based upon their status as homosexuals — is it — is it constitutional –

JUSTICE SCALIA: That — that’s not when it became unconstitutional. That’s when they acted in an unconstitutional matter — in an unconstitutional matter. When did it become unconstitutional to prohibit gays from marrying?

MR. OLSON: That — they did not assign a date to it, Justice Scalia, as you know. What the court decided was the case that came before it –

JUSTICE SCALIA: I’m not talking about the California Supreme Court. I’m talking about your argument. You say it is now unconstitutional.


JUSTICE SCALIA: Was it always unconstitutional?

MR. OLSON: It was constitutional when we -as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that –

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.

JUSTICE SCALIA: Well, how am I supposed to know how to decide a case, then–


MR. OLSON: Thank you, Your Honor. As I pointed out at the — at the outset, this is a measure that walls off the institution of marriage, which is not society’s right. It’s an individual right that this Court again and again and again has said the right to get married, the right to have the relationship of marriage is a personal right. It’s a part of the right of privacy, association, liberty, and the pursuit of happiness.

In the cases in which you’ve described the right to get married under the Constitution, you’ve described it as marriage, procreation, family, other things like that. So the procreation aspect, the responsibility or ability or interest in procreation is not a part of the right to get married. Now, that

CHIEF JUSTICE ROBERTS: I’m not sure, counsel, that it makes — I’m not sure that it’s right to view this as excluding a particular group. When the institution of marriage developed historically, people didn’t get around and say let’s have this institution, but let’s keep out homosexuals. The institution developed to serve purposes that, by their nature, didn’t include homosexual couples.

It is — yes, you can say that it serves some of the other interests where it makes sense to include them, but not all the interests. And it seems to me, your friend argues on the other side, if you have an institution that pursues additional interests, you don’t have to include everybody just because some other aspects of it can be applied to them.


GENERAL VERRILLI: Well — well, I understand that, Your Honor, but I do think that you have to think about the claim of right on the other side of the equation here. And in this situation, California — the argument here that — that gay and lesbian couples can be denied access to marriage on the ground of an interest in responsible procreation and child rearing just can’t stand up given that the parents have full equality, the gay and lesbian parents have full equality apart from –

JUSTICE ALITO: You want us to assess the effects of same-sex marriage, the potential effects on — of same-sex marriage, the potential — the effects of Proposition 8. But what is your response to the argument which has already been mentioned about the need to be cautious in light of the newness of the — the concept of — of same-sex marriage.
The one thing that the parties in this case seem to agree on is that marriage is very important. It’s thought to be a fundamental building block of society and its preservation essential for the preservation of society. Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn’t a lot of data about its effect. And it may turn out to be a — a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe.
But 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? I mean we — we are not — we do not have the ability to see the future.
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?


JUSTICE SOTOMAYOR: We let issues perk, and so we let racial segregation perk for 50 years from 1898 to 1954.

MR. COOPER: Your Honor, it is hard to –

JUSTICE SOTOMAYOR: And now we are only talking about, at most, four years.


JUSTICE KENNEDY: The problem — the problem with the case is that you’re really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that metaphor, there’s a wonderful destination, it is a cliff. Whatever that was.

JUSTICE KENNEDY: But you’re — you’re doing so in a — in a case where the opinion is very narrow. Basically that once the State goes halfway, it has to go all the way or 70 percent of the way, and you’re doing so in a case where there’s a substantial question on -on standing. I just wonder if — if the case was properly granted.


GENERAL VERRILLI: Well, we said this was a — we said this was a close question, and — and our interests are, Justice Alito, in tomorrow’s issues where we have briefed the matter thoroughly and will be prepared to discuss it with the Court tomorrow.

With respect to the merits, two fundamental points lead to the conclusion that there’s an equal protection violation here. First, every warning flag that warrants exacting scrutiny is present in this case. And Petitioners’ defense of Proposition 8 requires the Court to ignore those warning flags and instead apply highly deferential Lee Optical rational basis review as though Proposition 8 were on a par with the law of treating opticians less favorably than optometrists, when it really is the polar opposite of such a law.

JUSTICE GINSBURG: General Verrilli, I could understand your argument if you were talking about the entire United States, but you — your brief says it’s only eight or nine States, the States that permit civil unions, and that’s — brings up a question that was asked before. So a State that has made considerable progress has to go all the way, but at least the Government’s position is, if it has done — the State has done absolutely nothing at all, then it’s — it can do — do as it will.



I do think this Court’s equal protection jurisprudence requires the Court to evaluate the interests that the State puts forward, not in a vacuum, but in the context of the actual substance of California law.
And here, with respect to California law, gay and lesbian couples do have the legal rights and benefits of marriage, full equality and adoption, full access to assistive reproduction, and therefore, the argument about the State’s interests that — that Petitioners advance have to be tested against that reality, and — and they just don’t measure up.


JUSTICE SOTOMAYOR: General, there is an irony in that, which is the States that do more have less rights.


JUSTICE SCALIA: So your — your position is only if a State allows civil unions does it become unconstitutional to forbid same-sex marriage, right?

GENERAL VERRILLI: I — I see my red light is on.

CHIEF JUSTICE ROBERTS: Well, you can go on.

Our position is — I would just take out a red pen and take the word “only” out of that sentence. When that is true, then the Equal Protection Clause forbids the exclusion of same-sex marriage, and it’s an open question otherwise.


Roberts thinks having it both ways is:1) claiming that gay couples can raise children and2) also claiming that there is harm done to the children of same-sex couples who can’t marry.

I think Time gave him too much credit as the scrupulous swing voter.

CHIEF JUSTICE ROBERTS: — I — it seems to me that your position that you are supporting is somewhat internally inconsistent. We see the argument made that there is no problem with extending marriage to same-sex couples because children raised by same-sex couples are doing just fine and there is no evidence that they are being harmed. And the other argument is Proposition 8 harms children by not allowing same-sex couples to marriage. Which is it?

GENERAL VERRILLI: Well, I — I think what Proposition 8 does is deny the long-term stabilizing effect that marriage brings. That’s — that’s the argument for — for marriage, that –
CHIEF JUSTICE ROBERTS: But you also tell me there has been no harm shown to children of same-sex couples.
GENERAL VERRILLI: California — there are 37,000 children in same-sex families in California now. Their parents cannot marry and that has effects on them in the here and now. A stabilizing effect is not there. When they go to school, they have to, you know — they don’t have parents like everybody else’s parents. That’s a real effect, a real cost in the here and now.
Cooper’s cool with black babies, just not test tube babies, adopted babies, or babies born of surrogate mothers.  MR. COOPER: Yes. Thank you, Your Honor. Forgive me. And, you know, I’m glad that counsel for the Respondents mentioned the Loving case, because what this Court — what this Court ultimately said was patently obvious, is that the colors of the skin of the spouses is irrelevant to any legitimate purpose, no more so than their hair colors, any legitimate purpose of marriage, that interracial couples and same-race couples are similarly situated in every respect with respect to any legitimate purpose of marriage.
That’s what this question really boils down here, whether or not it can be said that for every legitimate purpose of marriage, are opposite-sex couples and same-sex couples indistinguishable, indistinguishable. And with all due respect to counsel and to the Respondents, that is not a hard question.
If, in fact, it is true, as the people of California believe that it still is true, that the natural procreative capacity of opposite-sex couples continues to pose vitally important benefits and risks to society, and that’s why marriage itself is the institution that society has always used to regulate those heterosexual, procreative — procreative relationships.
Everything’s an experiment, whether you grant the right to marry or continue to deny it. There are by-products of any decision, and just because the argument for prejudice happens to be the conservative one in this case, doesn’t make it the socially prudent one. In California, adoptive rights already exist, so I fail to see what Prop 8 accomplishes beyond trying to make same-sex relationships unstable, and therefore the argument that they make poor child rearers, a self-fulfilling prophecy.
JUSTICE KENNEDY: The problem — the problem with the case is that you’re really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that metaphor, there’s a wonderful destination, it is a cliff. Whatever that was.
(Laughter.)JUSTICE KENNEDY: But you’re — you’re doing so in a — in a case where the opinion is very narrow. Basically that once the State goes halfway, it has to go all the way or 70 percent of the way, and you’re doing so in a case where there’s a substantial question on -on standing. I just wonder if — if the case was properly granted.
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Author: The Blue Route

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