Justices ponder gay marriage

Between now and July, the Supreme Court is expected to rule on two cases dealing with same-sex marriage: one testing the constitutionality of California’s Proposition 8, the other involving the Defense of Marriage Act, which defines marriage for federal purposes as the union of a man and a woman. Oral arguments in the court last week raised the disheartening possibility that a majority of the court may be unwilling at this time to extend to same-sex marriages the constitutional protection it afforded to interracial marriages four decades ago.

Of course, questions and comments from the justices don’t necessarily predict how they will vote; sometimes they think aloud and play devil’s advocate. But that usually sensible caveat may itself have to be qualified when it comes to last week’s arguments. Based on comments from both liberal and conservative justices, a majority of the court seemed averse to confronting the central constitutional question raised by Proposition 8 and DOMA: whether denying samesex couples the right to civil marriage violates the Constitution’s guarantee of equal protection of the laws.

During arguments on Proposition 8, the California ballot measure that wrote a ban on same-sex marriage into the state Constitution in 2008, Justice Anthony Kennedy — a perennial swing vote on the court — wondered why the court had agreed to review a ruling by the U.S. 9th Circuit Court of Appeals, which invalidated the measure on the narrow grounds that, having once legalized same-sex marriage, the state couldn’t do away with it. “I wonder if this case was properly granted,” Kennedy said. That suggested that he wasn’t among the minimum of four justices who decided to hear the case and that he might be willing to join in a decision to dismiss it as “improvidently granted.”

For their part, the liberal justices likely to be supportive of marriage equality seemed doubtful about whether the citizen proponents of Proposition 8 had legal standing to appeal lower-court rulings against the measure once the governor and attorney general refused to do so. Justice Ruth Bader Ginsburg suggested that the proponents’ role ended when the measure was put on the ballot. “Once it’s passed,” she said, “they have no proprietary interest in it.” Chief Justice John G. Roberts Jr. also raised questions about the proponents’ standing to sue.

If the court were to dismiss the Proposition 8 case, as Kennedy hinted might be the proper approach, the decision of the 9th Circuit would be reinstated and same-sex couples in California would be able to marry. The same would be true if the court decided, as the liberals seemed to prefer, that the proponents of the measure lacked legal standing. Obviously either outcome would be preferable to a conservative victory in which a majority of the court upheld Proposition 8. But a narrow decision that merely undid Proposition 8 in California would be a pitifully limited victory and would leave intact prohibitions on same-sex marriage in 38 states.

Ironically, the position of those states would be strengthened if the court rules that the Defense of Marriage Act is unconstitutional because it intrudes on a state’s right to define marriage.

What we’d rather see is a ruling in the Proposition 8 case that prohibiting samesex marriage is a violation of equal protection of the laws. That would reduce the DOMA case to a footnote; it would become moot. Four liberal justices are thought to be sympathetic to that view, four conservatives hostile to it. That leaves Kennedy, the author of two landmark gay-rights decisions.

During the Proposition 8 argument he indicated that he recognizes the reality and dignity of same-sex relationships. For example, in an exchange with the lawyer for Proposition 8’s proponents, Kennedy noted that more than 40,000 children are being raised by same-sex couples in California, “and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?”

But Kennedy is also an advocate of states’ rights. In the DOMA argument, he said that the question “is whether or not the federal government, under our federalism scheme, has the authority to regulate marriage.” In the DOMA context, a sympathy for states’ rights works to the advantages of gay and lesbian couples in states that allow same-sex marriage. But the same impulse could make Kennedy reluctant to rule that states may not limit marriage to heterosexuals.

There were some other ominous notes in Kennedy’s questions and comments. In the same exchange with the lawyer for Proposition 8 proponents in which he referred to the children of gay couples, Kennedy said that “there’s substance to the point that sociological information [about the effect of same-sex marriage on children] is new. We have five years of information to weigh against 2,000 years of history or more.” The same concern was voiced by the conservative justices who seemed inclined to uphold Proposition 8. Justice Samuel A. Alito Jr. for example, told Solicitor Gen. Donald Verrilli that “you want us to step in and render a decision based on an assessment of the effects of this institution, which is newer than cellphones or the Internet.”

The notion that same-sex couples cannot be loving and competent parents is not supported by research, and in any event children already are being raised by samesex parents even where same-sex marriage is not legal. Speculative concerns about harms to children should not prevent Kennedy or his colleagues from lifting blanket bans on same-sex marriage in California and elsewhere. Nor are states’ rights and respect for the democratic process an excuse for declining to vindicate constitutional rights any more than they were in the case of interracial marriage. Proposition 8 and DOMA offer the Supreme Court an opportunity to affirm an ancient principle — equality before the law — in the context of contemporary social realities. The court should rule clearly and boldly.