WASHINGTON — Activists on both sides of the national debate on same-sex “marriage” gathered before the U.S. Supreme Court on March 26 and 27, as the justices heard oral arguments for two closely-watched marriage cases.
“We are gathered here to send one simple message to the justices of the Supreme Court,” Jennifer Roback Morse, the founder of the National Organization for Marriage’s Ruth Institute, said in a March 26 speech at the March for Marriage. “Do not try to short-circuit the debate over marriage the way Roe v. Wade short-circuited the debate over life.”
Inside the high court that day, several of the nine justices echoed Morse’s plea. They noted the scant evidence available to establish that children raised by same-sex couples don’t suffer ill effects.
“You want us to step in and assess the effects of this institution, which is newer than cellphones and the Internet?” asked Justice Samuel Alito, during March 26 oral arguments dealing with the constitutionality of Proposition 8, a 2008 California voter initiative that effectively barred same-sex “marriage” in the state.
On March 27, the justices heard oral arguments about the constitutionality of the Defense of Marriage Act (DOMA), which defines marriage for the purposes of federal law as a union between a man and a woman.
The courtroom exchanges in the two marriage cases offered a striking portrait of how far the national debate has shifted from an acceptance of long-standing natural-law principles that affirm a rational basis for marriage as a secure sanctuary for children.
“Why does the government and every society give marriage special status in the law? Its purpose is to bring men and women together to procreate responsibility, so that children can grow up with a mother and father,” Archbishop Salvatore Cordileone of San Francisco told the Register.
“Marriage provides the best context for children to grow up to be healthy and productive adults,” added the archbishop, who serves as the chairman of the U.S. bishops’ Subcommittee for the Promotion and Defense of Marriage.
In the Proposition 8 case, Hollingsworth v. Perry, the justices could allow the law to stand or they could overturn it in a narrow ruling that would only apply to California. They could also issue a sweeping decision that would legalize same-sex “marriage” across the nation.
But first, the justices must decide whether the private group defending Proposition 8 has legal standing to appeal a lower court ruling against the law. After state officials refused to defend the law, a group came forward to take up that responsibility, and an appellate court ruled that they did have standing.
If the high court finds they didn’t, Proposition 8 would be vacated, and same-sex “marriage” would be legal in California.
During the Proposition 8 oral arguments, the justices’ pointed questions hinted at their conflicting views of the meaning and purpose of marriage.
Charles Cooper, the attorney representing the group defending Proposition 8, stressed that “responsible procreation,” not the satisfaction of adult emotional needs, constituted the state’s primary interest in legal marriage.
Several justices challenged that assumption, yet the novelty of same-sex “marriage” also gave the justices pause. Justice Sonia Sotomayor wanted to know how a ruling that upheld a constitutional right to marriage would affect laws banning incest and polygamy.
“If you say that marriage is a fundamental right, what state restrictions could ever exist?” Justice Sotomayor asked Theodore Olson, who represented two same-sex couples seeking to overturn Proposition 8.
Olson asserted that “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,” he continued. "[Y]ou’re picking out a group of individuals to deny them the freedom that you’ve said is fundamental.”
But Chief Justice John Roberts questioned whether the institution of marriage had been designed to exclude homosexuals. “The institution developed to serve purposes that, by their nature, didn’t include homosexual couples,” he said.
That discussion, said Gerard Bradley, a constitutional expert at the University of Notre Dame law school, touched on “the question at the heart of the case: What is marriage?”
Said Bradley, “Once we [view marriage] as a benefit which everyone is presumptively entitled to enjoy, then the law of marriage has no stable definition.”
In the second marriage case, United States v. Windsor, the justices considered whether the Defense of Marriage Act, which bars federal benefits to legally married same-sex couples and restricts interstate marriage recognition to opposite-sex marriages, violates the Equal Protection Clause of the Constitution.
An estimated 1,100 federal laws provide benefits to married couples.
Legal challenges to Section 3 of DOMA have been filed in four federal district courts and two appeals courts.
If DOMA is overturned, the federal government would recognize same-sex "marriages" already authorized by U.S. states, but the ruling would not alter marriage laws nationwide. Same-sex “marriage” is now legal in nine states and the District of Columbia.
As with the Proposition 8 case, the justices must first consider the issue of legal standing. In 2011, the Obama administration announced it would no longer defend DOMA. So Republicans in the House took up that responsibility, appointing former Solicitor General Paul Clement to defend the federal law in court.
The justices now must decide whether the administration’s action deprives the Supreme Court of jurisdiction.
The justices also listened to arguments defending DOMA’s definition of marriage as a union of a man and a woman, while Solicitor General Donald Verrilli argued on behalf of the administration that the 1996 law clearly discriminates against same-sex couples.
Justice Ruth Ginsburg appeared to agree with Verrilli’s judgment, whereas Justice Anthony Kennedy, widely viewed as the divided court’s unpredictable “swing vote,” suggested that DOMA intruded on the states’ authority to regulate marriage.
The Purpose of Marriage
During almost two hours of oral arguments, there were only brief references to Congress’ most compelling reason for approving DOMA.
“All these federal statutes were passed with the traditional definition of marriage in mind,” Clement told the justices. “What Congress says is: ‘Let’s take a time out. This is a redefinition of an age-old tradition.’”
Further, the justices did not ask for guidance on a related constitutional issue: Will legal same-sex “marriage” threaten the free exercise of religious institutions and individuals that oppose a redefinition of marriage?
Archbishop Timothy Broglio of the Archdiocese for the Military Services acknowledged that DOMA’s repeal could have a chilling effect on the expression of religious and moral beliefs by military personnel, including Catholic chaplains.
“I would want some sort of freedom-of-conscience protection that allows someone to preach the moral law without it being branded as hate speech, “ said Archbishop Broglio in an interview.
Rulings Expected in June
The high court is expected to rule on both marriages cases by late June, and some legal experts predict that same-sex “marriage” victories in the 2012 election will influence the high court’s deliberations. But William Duncan, director of the Marriage Law Foundation, noted that several justices had already expressed concern “about removing this issue from the political process to the federal courts.”
“We have to continually remind ourselves that the question the court is being asked is whether the U.S. Constitution mandates a radical redefinition of marriage either for the states or the national government,” Duncan said. “As Justice Scalia noted during the Proposition 8 oral argument, the proponents of redefining marriage just can’t point to a time when the Constitution magically changed to include that mandate.”
Joan Frawley Desmond is the Register’s senior editor.