There’s no doubt Tuesday’s Supreme Court oral arguments on same-sex marriage marked a huge, monumental moment in LGBT rights. What to make of that moment, well, is where it gets complicated.
Justices heard from parties in the Hollingsworth v. Perry case, involving California’s Proposition 8 that banned gay marriage. It’s the first of two cases dealing with the issue before the court, with oral arguments set for Wednesday morning on the constitutionality of the federal Defense of Marriage Act.
Those hoping for a quick prognostication after Tuesday’s hearing found little solace. This tweet from the Associated Press summed it up well:
No apparent majority for any particular outcome on California’s same-sex marriage ban at the Supreme Court: apne.ws/X9voNp
— The Associated Press (@AP) March 26, 2013
Yep. We might be back where started on gay marriage, at least on Prop 8. Or maybe not.
We’ll know the by the end of this Supreme Court session, likely toward the end of June. But come on, who wants to wait that long?
With the Prop 8 case, justices could arrive at three different judgments — uphold the referendum, strike it down or decide its supporters don’t have the standing to appeal. The New York Times has a handy chart that goes more into detail.
The first and third possibilities are easy to explain, in that the gay marriage ban would remain in place in the former and would not in the latter. Striking it down, however, could result in different outcomes dependent on rationale, including overturning all bans, converting civil union states to marriage states or only affecting California.
It’s complicated. And seeing that, maybe it’s not a surprise that we have no discernable conclusion after 80 minutes of oral arguments. (The Supreme Court published the audio and transcript Tuesday afternoon, if you’ve got some free time.)
That AP story, which signals the inconclusiveness, suggests justices could decide that they shouldn’t even be deciding the Prop 8 case. (SCOTUSblog also voiced this view.) That’s based in part on Justice Anthony Kennedy saying that the court could go into “uncharted waters” on gay marriage, and Justice Samuel Alito remarking that the idea of gay marriage is “newer than cellphones and/or the Internet.”
Kennedy also said he wonders “if this case was properly granted,” according to The New York Times. Chief Justice John G. Roberts also interrupted the attorney arguing in favor of Prop 8 only seconds into the hearing to ask whether they had standing to appeal the lower court’s decision, since the state of California elected not to defend the referendum. Justice Sonia Sotomayor, on those same lines, asked what “injury” is caused by gay marriage.
Children came up during oral arguments as well, albeit in two different forms. Kennedy questioned the effect of gay marriage bans on children of LGBT couples, and said “The voices of these children are important, don’t you think?”
But the topic of having kids provided for an odd moment. Charles Cooper, who argued on behalf of Prop 8, said the government should not allow same-sex marriage because the institution is about “responsible procreation.” Justice Elena Kagan pressed him, asking about older, heterosexual couples, but Cooper countered that the man might still be fertile. Strange.
Anyway, for all this media coverage and attention given to oral arguments, Tuesday’s hearing might not even make that big of a difference. In a May story after oral arguments in the Affordable Care Act case, The New York Times quoted Justice Clarence Thomas as saying arguments “almost never” changes his mind and, “being generous,” only “5 to 10 percent of the cases” for his colleagues.
This is coming from the man who didn’t speak during oral arguments for seven years before making an off-the-cuff remark in January. But considering the prevailing thought that arguments went poorly for Obamacare and the actual result, Thomas might be onto something.
We’ll do all this again with DOMA Wednesday morning.