On March 26, the Supreme Court heard oral arguments for Hollingsworth vs. Perry, better known as the case regarding California’s Proposition 8.
The main question before the Court is “whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.”
The Equal Protection Clause, in practice, means the State cannot just exclude a particular group from a law because it wants to; it has to have a reason that has to be related to a governmental interest. The Court has found that certain suspect classifications, such as race or sex, have to meet a higher standard of scrutiny.
When looking at the case, it’s clear that no matter what level of scrutiny the Court applies, Proposition 8 should fall on the basis of a broad Equal Protection claim that finds a constitutional right for same-sex couples to get married across the United States.
When looking at how the Court might rule, Chief Justice Roberts and Justices Alito, Scalia, and Thomas are all lost causes, but Justice Kennedy might just join a nationwide same-sex marriage ruling yet.
Why? Let’s look at the legal argument of the opponents of same-sex marriage.
Those who want Prop 8 to stand say the law advances the State’s interests in “responsible procreation,” “childrearing,” “proceeding with caution before fundamentally redefining a bedrock social institution,” and restoring “democratic authority over an issue of vital importance to the People of California.”
I’ll address each of these in turn.
First, the idea that including same-sex couples in the definition of marriage somehow furthers “responsible procreation” is absurd. The elderly, the sterile and those who do not intend to have children can all get married, so there is already an expectation that some married couples will not procreate. The fact that many women are having babies outside of marriage obviously has nothing to do with same-sex marriage, and including gay couples in the institution of marriage furthers the norms of monogamy, commitment and stability that help lead to more responsible procreation.
Second, same-sex marriage would clearly further the state interest in childrearing. Same-sex marriage nationwide would lead to more adoptions, which improves childrearing outcomes, and the Prop 8 proponents’ own expert said that the recognition of same-sex marriage would increase the well-being of the over 40,000 children who live with same-sex couples in California.
Third, the recommendation to proceed with caution, based on fears of potential future consequences that are not backed up by any evidence, is not enough to justify continued discrimination. Same-sex marriage is now legal in nine states and the District, yet its opponents are not able to cite even one example of negative consequences that have occurred. Plus, the traditional definition of marriage has changed before — it now allows for interracial marriage and doesn’t treat women as property.
Fourth, the State has no interest in allowing the ballot box to deny fundamental rights of citizens, which is why we have the Fourteenth amendment in the first place.
So it’s clear — it is unconstitutional for the State of California, or any other state, to define marriage as the union of a man and a woman, thereby excluding same-sex couples.
Justice Kennedy seems to know this, too.
During oral arguments, he indicated that the Proposition 8 proponents probably had standing. He rightly didn’t think a limited California ruling made any sense, as this would render the law unconstitutional only because it took away rights after they were granted. He didn’t buy the eight-state option put forth by the Obama administration that the law is unconstitutional because California grants equal benefits, but not marriage, to same-sex couples.
Despite this, Justice Kennedy lamented the Court taking the case in the first place. He appears to be uncomfortable and looking for a way out, whether by denying standing or by some other procedural means.
Justice Kennedy, that would be moral and judicial cowardice.
There’s nothing conservative in perpetuating the idea in many states that gay relationships are to be frowned upon or that gay parents have less ability to contribute to society or to parent or to love or to care.
There’s nothing radical in acknowledging the fundamental human dignity and worth of gay people throughout this nation.
There’s nothing admirable about letting the democratic process continue to play itself out. Think of a young homosexual girl or boy in Tennessee or Mississippi, where prejudice and ignorance against those in the LGBT community is still too often condoned and where a pro-gay marriage vote is a long way off.
There’s no valor and no honor in Justice Kennedy trying to hold that black robe over his eyes and ears and deny what is so clearly obvious. There’s no “uncharted waters” here, no “cliff.”
Justice Kennedy, it’s your move. You know what you should do. Now be on the right side of the law, of history, and of justice, and do it.