Supreme Court leery of finding broad right to marriage in Prop. 8 case

The Justices of the Supreme Court appeared skeptical Tuesday about finding a constitutional right to same-sex marriage in a landmark case challenging California’s Proposition 8, the initiative banning such unions that voters approved in 2008.

Justice Anthony Kennedy, considered the pivotal vote on the court, said extending same-sex marriage rights to all 50 states, as the star legal team of Ted Olson and David Boies and San Francisco city attorney Dennis Herrera asked, could invite the court into “uncharted waters.”

Still, Kennedy expressed concern about the tens of thousands of California children living in homes headed by gay and lesbian couples whose unions are seen by the state as inferior to marriage.

Several justices explored the implications of a narrower ruling, including one that would let stand lower court decisions finding Prop. 8 to be unconstitutional. That would make same-sex marriage legal in California but not require it in other states that now ban it.

Chief Justice John Roberts wondered whether the fight over marriage was “just about the label” because California grants to gay and lesbian couples all marital rights short of the term marriage.

Roberts drew an analogy to efforts to expand the term marriage to a child deciding whom to call a friend. “I suppose you can force the child to say, this is my friend, but it changes the definition of what it means to be a friend,” Roberts argued.

Olson shot back that “certain labels” have a great deal of meaning in the law and culture, such as the word “citizen.”

“It’s like you were to say you can vote, you can travel, but you may not be a citizen,” Olson said.

Olson told reporters after the arguments not to read too much into the justices’ questions and that the case itself had educated the public and changed attitudes about same-sex marriage.
“I’m not sure what the United States Supreme Court is going to do,” Olson said, “but we’re very glad they listened.”

Olson, top Republican lawyer, emphasized that his teaming with Boies, a Democrat and his former opponent in Bush v. Gore, was intended to demonstrate that same-sex marriage is about liberty and equal protection, not partisanship or ideology.

Two of the plaintiffs, Kris Perry and Sandy Stier of Berkeley, stood with two of their four children, teenage twins Spencer and Elliot. Spencer said he and his brother are “very, very proud sons,” and they “look forward to the day when we are treated equally.”

Perry would not speculate on the outcome of the case but said she was relieved it was reaching its climax and looked forward to the decision, expected at the end of June.

See a transcript of the lively arguments here. Audio available here.

Among the high (or low) points was an odd repartee from Justice Antonin Scalia to Justice Elena Kagan. Kagain was challenging the Prop. 8 proponents argument that the sole state interest in marriage is to promote “responsible procreation” among heterosexuals who otherwise might have babies willy nilly.

Kagan said if that were the case, why not ban marriage for those older than 55. Scalia, in an odd moment, joked that the late Sen. Strom Thurmond, R-NC, a former segregationist and notorious Lothario who fathered a mixed-race child as a young man, along with several children at an advanced age — and died at 100 — was not heading the Judiciary Committee when Kagan was confirmed, as he was when Scalia was confirmed. He seemed to suggest that Kagan would think differently of elderly male fertility had she had Thurmond’s example before her.

Scalia also repeatedly referred to California Attorney General Kamala Harris as “he.”

Carolyn Lochhead