The Supreme Court heard oral arguments on a marriage equality case Tuesday that has the potential to legalize same-sex marriage across the country. The hearing concerned whether California’s Proposition 8 violates the Due Process and Equal Protection Clauses of the fourteenth amendment. Proposition 8 was a 2008 ballot measure that defined marriage in California as between one man and one woman, overturning a previous California Supreme Court decision that same-sex couples have a right to marry.
The Supreme Court listened to arguments from Attorney Charles Cooper on behalf of the petitioners, Attorney Theodore Olson on behalf of the respondents, and Solicitor General Donald Verrilli on behalf of the federal government. All three addressed the debate over same-sex marriage that has evolved rapidly across the country.
“The question before this Court is whether the Constitution puts a stop to that ongoing democratic debate and answers this question for all 50 States,” Cooper said. “And it does so only if the Respondents are correct that no rational, thoughtful person of goodwill could possibly disagree with them in good faith on this agonizingly difficult issue.”
Cooper argued that the ruling for today’s case would have ramifications within every state across the country. He felt strongly that no ruling could be limited just to California. Proponents on both sides of the same-sex marriage issue agree. Gay rights groups such as the Human Rights Campaign see this as an opportunity to score a decisive win for the marriage equality movement across the country.
Cooper presented an argument that heterosexual marriage serves a function for society and emphasized the benefit of committed heterosexual relationships for procreation, child-rearing, and society as a whole.
“Your Honor, we — we go further in — in the sense that it is reasonable to be very concerned that redefining marriage to — as a genderless institution could well lead over time to harms to that institution and to the interests that society has always — has — has always used that institution to address,” Cooper said in response to Justice Elena Kagan, who asked if same-sex relationships harmed any state interest.
Cooper argued the established benefits committed heterosexual relationships provide for children and positioned marriage as a tool towards procreation. Justice Kagan asked if couples over the age of 55 should be barred from getting married, since their marriage will not involve procreation. Cooper argued that it is rare that both parties in the couple are infertile, as is the case with same-sex relationships.
“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,” Justice Kagan said, drawing laughter from the audience.
Cooper argued that society’s interest in responsible procreation isn’t just concerned with the procreative capacities of the couple itself. Rather, the marital norm, which imposes the obligations of fidelity and monogamy, advances responsible procreation.
Olson argued that denying same-sex couples the right to marry in a state that grants same-sex couples essentially the same rights as married couples is a form of discrimination.
“It walls-off gays and lesbians from marriage, the most important relation in life, according to this Court, thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal, and not okay,” Olson said.
Justice Sotomayor questioned if there were any restrictions states could fairly put on marriage.
“…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,” Olson said.
Olson’s argument was scrutinized by several justices who wondered how it would be better to rule discrimination as wrong in states that grant same-sex couples rights but to disregard the discrimination in states that do not.
Verrilli came under the same criticism. He, like Olson, sought to limit the scope of the case to the state of California. Cooper’s rebuttal, however, reiterated the stance that this case will have ramifications felt across the country. Both sides suspect that the Supreme Court does not want to decide whether marriage equality should be legal nationwide.
Both the full audio and transcript of today’s hearing are available from the Supreme Court.