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Before I get into the meat of the court cases, I’d like to say that I’m so encouraged and uplifted by the social reaction I’ve seen around me. Maybe it’s because I live in D[em].C. , maybe it’s because I’m part of several particularly socially liberal subcultures, but I’ve seen so much support from a wide range of people. From Democrats to Republicans, from freelance artists to engineers to enlisted military personnel. And it has made my heart swell. I can see that I am part of a generation that is turning the tide on something that was once, and still is, so controversial. It’s happening. We’re doing it. We are powerful and I am proud.

A Quick Aside:

I’d never listened to an actual Supreme Court brief before, and I found it kind of surprising. There were specific allotments of time where each party and the Solicitor General were allowed to make their cases, but otherwise there was a surprising lack of structure. The advocates were hardly ever allowed to speak for more than 20 seconds without being interrupted by the Justices, which resulted in an occasionally hostile and disjointed environment. At several points it was difficult for me to tell who was speaking, what they were arguing, and even which side they were advocating for. Overall it was an extremely interesting look into our nation’s judicial system. If you’d like to listen to it yourself, here are the audio and written transcripts.

Some Useful References (because “legal-speak”, amirite?!):

  • Petitioners – Against same-sex marriage
  • Respondents – For same-sex marriage
  • Amicus Curiae – A person not directly associated with either side of a case but offers arguments on the broader legal implications of that case
  • Charles J. Cooper, Esq. – Supporting the Petitioners (against same-sex marriage)
  • Theodore B. Olson, Esq. – Supporting the Respondents (for same-sex marriage)
  • Donald B. Verrilli, Jr., Esq. – Solicitor General of the United States, appointed amicus curiae and supporting the Respondents

Hollingsworth v. Perry: California’s Prop 8

On Tuesday (Mar 26, 2013) we heard testimony on the constitutionality of the 2008 California referendum “Proposition 8”, an amendment to the state’s constitution stating that the only legally recognized marriage in California is between a man and a woman. The question being presented to the Supreme Court was whether the Equal Protection Clause (EPC) of the 14th Amendment prohibits California from defining marriage in this way.

You may remember the “Prop H8” campaign

Now, the EPC requires each state to provide equal protection under the law to all people within its jurisdiction. Great, it’s definitional! California gives all other rights to same-sex couples (including adoption of children, btw), clearly recognizing them as a class and making the law (which discriminates only in the case of marriage) improper and suspect. Case closed!

“Who gives a shit? Does anyone else up here care about this?”

Oh, if only…

There were a few things I didn’t hear during the Petitioners’ testimony. I didn’t hear anything about the lack of “morality” or “naturalness” of homosexuality that usually arises in non-legal debate over same-sex marriage. I didn’t hear about a perceived threat to traditional marriage either. And that, at least, was encouraging. (I encourage you to check out John Corvino for some amazing takedowns of these arguments.)

What I did hear was a lot about children. The crux of the Proponents’ argument in defense of Prop 8 centered on the belief that the focus of marriage, and by extension its derived legitimacy, is solely for the production and protection of a child. In one instance Mr. Cooper stated:

The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus the purpose of marriage […] to the emotional needs and desires of adults…

This is particularly confusing. Almost no one in our generation thinks of marriage as solely or even at all for the purpose of procreation. We think of marriage as a committed partnership between two adults who enrich and encourage each other’s lives.  This argument is so far from the cultural understanding that it’s laughable, and indeed the audience did laugh when Justice Kagan pointed out that, with that argument, marriage between those over 55 should also not be recognized because “I can just assure you, […] there are not a lot of children coming out of that marriage.”

Lest we forget how awesome Justice Kagan is

Even Justice Scalia had a little fun, joking: “I suppose we could have a questionnaire at the marriage desk when people come in to get the marriage – you know, are you fertile or are you not fertile?”

The other surprisingly confusing argument was:

The marital norm, which imposes the obligations of fidelity and monogamy, Your Honor, advances the interests in responsible procreation…

This seems to imply that heterosexual couples don’t cheat and are monogamous which is in itself laughable. But it also seems to imply that homosexual couples are, by definition, less capable of monogamy or fidelity, which is at the very least insensitive and uninformed.

Supporting the Respondents’, Solicitor General Donald Verrilli, Jr. Esq. also used children as a talking point. “Waiting is not a neutral act. Waiting imposes real costs in the here and now. It denies to the parents who want to marry the ability to marry, and it denies to the children, ironically, the very thing that Petitioners focus on is at the heart of the marriage relationship.” Meaning the stability that comes from having legally recognized married parents. While it wasn’t mentioned in the testimony, it’s worth sharing the recent news from the American Academy of Pediatrics which affirms this and also backs up the official policy statement by the American Psychological Association which says that the development, adjustment, and well-being of children with lesbian and gay parents do not differ markedly from that of children with heterosexual parents.

I was pleased to hear Justice Kennedy remark:

There are some 40,000 children in California that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case

It’s rare to hear such candid invocation of the feelings, rights, and desires of children and I couldn’t agree more.

Stay Tuned:

My final thoughts are that the Petitioners’ arguments were ill formed and ill argued but the reaction of the Justices to both sides was generally tepid and contained much criticism. Mr. Cooper argued:

that redefining marriage will have real-world consequences, and that it is impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be. Among those real-world consequences, Your Honor, we would suggest are adverse consequences.

Are you serious? This isn’t a hydroelectric dam upriver of a native village. Are you worried people will magically “turn gay”? Are you worried that heterosexual couples will stop having children out of spite? That gay people are inherently not spiritual and will therefore divert people from religious institutions?

There will be a consequence. Same sex people in California will be able to get married and their children will benefit from having legally recognized and supported married parents.

There were also numerous allegories to the civil rights movement. Most importantly it was invoked to illustrate the fact that the issue of marriage equality is incredibly new (it has only been 9 years since Massachusetts became the first state to legalize same-sex marriage in 2004).  Justice Sotomayor:

If the issue is letting the States experiment and letting the society have more time to figure out its direction, why is taking a case now the answer? […] We let issues perk, and so we let racial segregation perk for 50 years from 1898 to 1954.

With due respect to Justice Sotomayor, are we as a society better for letting the issue of racial equality “perk” for 50 years? Will our we be bettered by letting the issue of same-sex marriage similarly percolate? The constitution specifically protects the rights of each citizen to equal protection and treatment under the law. I argue that these civil issues are not experiments-pending-some-critical-mass-of-public-support-that-would-clear-controversy-surrounding-the-declaration-of-their-individual-constitutionality. They are inalienable rights that deserve recognition and protection under the law regardless of public opinion.

All told, I was far less encouraged by the testimony and discussion than I was by the social reaction but I’m still hopeful that human rights will prevail this summer. If you’re wondering what the possible outcomes of the rulings could be, The New York Times has a really great infographic here. Thoughts anyone?