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Of Procreation and Labels: Supreme Court Hears Prop. 8 Challenge

Justice Kennedy: "The problem with the case is that you're really asking...for us to go into uncharted waters."

by
Bridget Johnson

Bio

March 26, 2013 - 6:30 pm
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Olson argued that same-sex marriage is “a part of the right of privacy, association, liberty, and the pursuit of happiness.”

“The procreation aspect, the responsibility or ability or interest in procreation is not a part of the right to get married,” he added.

“I’m not sure that it’s right to view this as excluding a particular group. When the institution of marriage developed historically, people didn’t get around and say, ‘Let’s have this institution, but let’s keep out homosexuals.’ The institution developed to serve purposes that, by their nature, didn’t include homosexual couples,” said Chief Justice John Roberts.

“When did it become unconstitutional to exclude homosexual couples from marriage? 1791, 1868, when the 14th Amendment was adopted?” Scalia asked.

“May I answer this in the form of a rhetorical question?” Olson said. “When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?”

Scalia and Olson went back and forth on this point, with Olson stressing same-sex marriage “was constitutional when we, as a culture, determined that sexual orientation is a characteristic of individuals that they cannot control.”

“I see. When did that happen? When did that happen?” Scalia asked.

“There’s no specific date in time. This is an evolution,” Olson responded.

“Well, how am I supposed to know how to decide a case, then, if you can’t give me a date when the Constitution changes?”

“The case that’s before you today is whether or not California can take a class of individuals, based upon their characteristics, their distinguishing characteristics, remove from them the right of privacy, liberty, association, spirituality, and identity that — that marriage gives them,” argued Olson. “It is not an answer to say procreation or anything of that nature because procreation is not a part of the right to get married.”

“Same-sex couples have every other right. It’s just about the labels,” Roberts offered. “…All you’re interested in is the label and you insist on changing the definition of the label.”

“It is like you were to say you can vote, you can travel, but you may not be a citizen. There are certain labels in this country that are very, very critical,” Olson said.

“I can accept that the state has probably an overbearing interest on protecting a child until they’re of age to marry, but what’s left?” Sotomayor asked.

“You’ve said in the cases decided by this court that the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody. It is an entirely different thing. And if you — if a state prohibits polygamy, it’s prohibiting conduct,” the lawyer answered. “If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status.”

Kennedy said “the problem with the case is that you’re really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters.”

Solicitor General Donald Verrilli Jr. chimed in on the side of Prop. 8 opponents to argue the measure “denies gay and lesbian persons the equal protection of the laws.”

“But what is your response to the argument which has already been mentioned about the need to be cautious in light of the newness of the — the concept of — of same-sex marriage?” asked Justice Samuel Alito. “…It may turn out to be a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe. But 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? I mean, we — we are not — we do not have the ability to see the future.”

Verrilli said Prop. 8 “pushed a delete button” on even the prospect of same-sex marriage in the future with a “permanent ban.”

“The rest of the country has been cautious,” Scalia noted.

“Waiting is not a neutral act. Waiting imposes real costs in the here and now,” Verrilli said. “It denies to the — 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.”

“It seems to me that your position that you’re supporting is somewhat internally inconsistent. We see the argument made that there’s no problem with extending marriage to same-sex couples because children raised by same-sex couples are doing just fine and there’s no evidence that they’re being harmed. And the other argument is Proposition 8 harms children by not allowing same-sex couples to marriage. Well, which is it?” Roberts asked.

“Their parents cannot marry, and that has effects on them in the here and now. A stabilizing effect is not there. When they go to school, they have to, you know — they don’t have parents like everybody else’s parents. That’s a real effect, a real cost in the here and now,” Verrilli argued.

A few lawmakers jumped into the public debate today, though many seemed to be exercising the same degree of caution discussed from the bench.

Tomorrow, the Supreme Court hears arguments in the Defense of Marriage Act challenge, a law a bit closer to the heart of the Hill than a California ballot measure.

“Proposition 8 and DOMA serve only to codify discrimination in our laws and perpetuate the prejudiced notion that lesbians and gays are to be treated differently than everyone else,” said Rep. Alcee Hastings (D-Fla.). “The fact of the matter is that they prevent same-sex couples from having the same critical rights, benefits, and protections that heterosexual couples receive through marriage.”

“The Constitution never contemplated marriage being anything other than between a man and a woman,” said Rep. Steve King (R-Iowa). “And for the United States Supreme Court to come to an opposite conclusion would mean, I think, a real distortion of the Constitution, which is a contractual guarantee between each of the generations.”

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Bridget Johnson is a veteran journalist whose news articles and opinion columns have run in dozens of news outlets across the globe. Bridget first came to Washington to be online editor at The Hill, where she wrote The World from The Hill column on foreign policy. Previously she was an opinion writer and editorial board member at the Rocky Mountain News and nation/world news columnist at the Los Angeles Daily News. She is an NPR contributor and has contributed to USA Today, The Wall Street Journal, National Review Online, Politico and more, and has myriad television and radio credits as a commentator. Bridget is Washington Editor for PJ Media.

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Top Rated Comments   
If SCOTUS declares Prop 8 unconstitutiuonal it is only a matter of time before NAMBLA files its first suit on sex with minors. To be followed closely by First Cousins in Love, the Nationa Sheep F%^&ers Association, and the Radical Mormons for Legalization of Polygamy.
1 year ago
1 year ago Link To Comment
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All Comments   (24)
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I believe adoption of children by singles is also allowed in some states. Why haven't the opponents of same sex marriage done anything to eliminate this as well?
1 year ago
1 year ago Link To Comment
The primary argument against same-sex marriage is that it undermines marriage as an institution for raising kids. I get this. However, if this is true, then why haven't the opponents of same-sex marriage been as diligent at trying to prevent the adoption of kids by same-sex couples? To oppose same-sex marriage while accepting adoption of children by same sex couples is logically self-contradictory and nullifies this entire argument against same-sex marriage.
1 year ago
1 year ago Link To Comment
Civil marriage ought to be considered like incorporation. Anyone can go into business. The constitution guarantees this. So also, marriage. However the benefits accorded a business through incorporating are not a right. So also the benefits of civil marriage are not a right.
1 year ago
1 year ago Link To Comment
The founding fathers had good reason to pen the Tenth Amendment.

The issue of power – and especially the great potential for a power struggle between the federal and the state governments – was extremely important to the America’s founders. They deeply distrusted government power, and their goal was to prevent the growth of the type of government that the British has exercised over the colonies.

Adoption of the Constitution of 1787 was opposed by a number of well-known patriots including Patrick Henry, Samuel Adams, Thomas Jefferson, and others. They passionately argued that the Constitution would eventually lead to a strong, centralized state power which would destroy the individual liberty of the People. Many in this movement were given the poorly-named tag “Anti-Federalists.”

The Tenth Amendment was added to the Constitution of 1787 largely because of the intellectual influence and personal persistence of the Anti-Federalists and their allies.

It’s quite clear that the Tenth Amendment was written to emphasize the limited nature of the powers delegated to the federal government. In delegating just specific powers to the federal government, the states and the people, with some small exceptions, were free to continue exercising their sovereign powers.

When states and local communities take the lead on policy, the people are that much closer to the policymakers, and policymakers are that much more accountable to the people. Few Americans have spoken with their president; many have spoken with their mayor.

Adherence to the Tenth Amendment is the first step towards ensuring liberty in the United States. Liberty through decentralization.
1 year ago
1 year ago Link To Comment
Where in the Constitution does it even mention traditional marriage? Marriage, at its core, is a religious ceremony/institution, and therefore it is constitutional under the first amendment. Thus, a particular religion or church which agrees to marry gay or lesbian couples should be free to do so, under the constitution. By the same token, religions can forbid it among their members.
1 year ago
1 year ago Link To Comment
If SCOTUS declares Prop 8 unconstitutiuonal it is only a matter of time before NAMBLA files its first suit on sex with minors. To be followed closely by First Cousins in Love, the Nationa Sheep F%^&ers Association, and the Radical Mormons for Legalization of Polygamy.
1 year ago
1 year ago Link To Comment
You exaggerate, but then again, "If these people can, why not those?" If rights are confessed in painful gasps from the Fourteenth Amendment after being tortured and stretched on the rack, why not a bit more torture and see what other rights it will blurt out in pain?
1 year ago
1 year ago Link To Comment
“The court has several ways to decide this case, from a very broad, sweeping conclusion with respect to the rights of our citizens in this country to a narrower ruling that would be limited basically to California. The court never gives you an idea how they’re going to decide it. They didn’t today,” Olson said. “They’ve obviously read the briefs. They care about the issues. And then we’ll see what the court decides.”

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If its a 5/4 ruling with the conservative judge majority this will be lobbed back to California for them to chew on - if the liberal side wins look for a sweeping decree - AKA legislating from the bench. My guess is it'll be a 7/2 or 6/3 ruling against Prop 8. Now lets get back to more serious stuff - please. Like how to kill ObummerCare before it kills all of us.
1 year ago
1 year ago Link To Comment
I think Kennedy will vote to destroy the Church, because he thinks that homos are ill treated.

Kind of like cfbleachers.
1 year ago
1 year ago Link To Comment
They'll never destroy the church.
1 year ago
1 year ago Link To Comment
In the last century 100,000 clergymen and millions of believers were imprisoned or killed in the USSR. Today the Church in Russia is thriving. Christos Voskrese.
1 year ago
1 year ago Link To Comment
“The Constitution never contemplated marriage being anything other than between a man and a woman,” said Rep. Steve King (R-Iowa). “And for the United States Supreme Court to come to an opposite conclusion would mean, I think, a real distortion of the Constitution, which is a contractual guarantee between each of the generations.”

Thata a rather ridiculous comment! I doubt the founders envisioned thousands of things and circumstances of todays era. Thats probably why they framed a process to amend the constitution and gave broad authority to the congress. I doubt they envisoned the types of firearms we have today or that a corporation could be deemed as a person or that women would work outside of the home or that people, communities and their churches would not adequately care for the aged, infirmed and downtrodden among them or......
1 year ago
1 year ago Link To Comment
I don't think 'gender' is an issue thats going to be on the table as well it shouldn't be. Scalia injecting "harm'" was more than embarrassing inside the judicial club, no matter what your partisan and religious views, re this particular case being heard -- and was not prosecuted or defended by either party as it being irrelevant. I think the case will come, or should come down, to a states rights versus constitutional equal rights. Short of a constitutional amendment, the constitution does not define marrage as being between a man and a woman so on the one hand theoretically it would be a states issue. On the other hand, the constitutions equal rights clause is controlling over all the states.

I'm betting on a very narrow California specific ruling skirting the issue of defining marriage and gender.
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1 year ago
1 year ago Link To Comment
'...for the United States Supreme Court to come to an opposite conclusion would mean, I think, a real distortion of the Constitution...'

Since the founding document was ratified, we have seen over the generations an increasing propensity of the offspring to contort, disport, and distort the meaning of the Constitution until, it seems, that it is revered only in officious and nebulous words by callous and incautious public servants who have little if any respect for The Words. To Obama and his fellow travellers, The Words are just that and nothing more, just words.

He and his followers begrudge the little man when he violates the law, but to them the law is what they wish it to be.
1 year ago
1 year ago Link To Comment
Humpty Dumpty
1 year ago
1 year ago Link To Comment
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