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

California’s Proposition 8 recognizing only marriage between a man and a woman had its morning before the highest court in the land today, with arguments centering around procreation and the label of marriage.


Protesters on both sides of the issue marched, prayed, danced and rallied in front of the Supreme Court. With Congress in recess, reporters badgered senators in their districts to get their current stances on same-sex marriage. The White House, still trumpeting its surprise ObamaCare victory here in June, tried to be quietly engaged, putting Valerie Jarrett in the courtroom but otherwise offering little prognostication.

And two lawyers who found themselves on opposing sides here more than a dozen years ago in Bush v. Gore joined forces today to argue that gay couples should have the right to marry in the Golden State.

“I think the most remarkable thing that happened in there was that there was no attempt to defend the ban on gay and lesbian marriage. There was no indication of any harm,” attorney David Boies, who represented Al Gore in the 2000 election fight, said after today’s oral arguments. “All that was said in there was that this important constitutional right ought to be decided at the state level as opposed to the federal government, but it is a federal Constitution that we have, and it is a federal Constitution that guarantees fundamental rights to every citizen in every state.”

Based upon the questions that the justices asked, “I have no idea” how the justices will rule, said Ted Olson, former solicitor general under President George W. Bush.

“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.”

Andrew Pugno, general counsel for ProtectMarriage.com, said he expected to see “a very reasoned decision come out of this court.”

“Our position all along has been that the political process — that means state by state, states deciding for themselves — that that’s the forum where this debate belongs, and that this is not something that should be imposed by the judiciary — by the courts,” Pugno said. “And so a victory here for us means that this issue returns to the people and their legislatures and their elected representatives where the debate belongs.”


“We feel very confident about the standing question and are hopeful that the Supreme Court again will uphold the people’s right to defend and protect marriage in their state laws,” said Austin Nimocks, senior counsel for the Alliance Defending Freedom.

Prop. 8 passed in 2008 with 52 percent support. Since then, the measure has worked its way up the courts. The Ninth Circuit Court of Appeals found the proposition to be unconstitutional.

Inside the court, Justice Anthony Kennedy asked Charles Cooper, lead counsel for ProtectMarriage.com, if the same-sex marriage controversy can be treated “as a gender-based classification.”

“It’s a difficult question that I’ve been trying to wrestle with,” Kennedy added.

“I guess it is gender-based in the sense that marriage itself is a gendered institution, a gendered term, and so in the same way that fatherhood is gendered or motherhood is gendered, it’s gendered in that sense,” Cooper responded. “We agree that to the extent that the classification impacts, as it clearly does, same-sex couples, that that classification can be viewed as being one of sexual orientation.”

“Outside of the marriage context, can you think of any other rational basis, reason for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them?” Justice Sonia Sotomayor asked. “Is there any other rational decision-making that the government could make, denying them a job, not granting them benefits of some sort, any other decision?”

“Your honor, I cannot,” Cooper replied. “…We are saying the interest in marriage and the state’s interest and society’s interest in what we have framed as responsible procreation is vital, but at bottom, with respect to those interests, our submission is that same-sex couples and opposite-sex couples are simply not similarly situated.”

“In reading the briefs, it seems as though your principal argument is that same-sex and opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples cannot, and the state’s principal interest in marriage is in regulating procreation. Is that basically correct?” asked Justice Elena Kagan.


“That’s the essential thrust of our position, yes,” said Cooper.

“I don’t know why you don’t mention some concrete things,” Justice Antonin Scalia admonished the lawyer. “If you redefine marriage to include same-sex couples, you must — you must permit adoption by same-sex couples, and there’s considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not. …I don’t think we know the answer to that. Do you know the answer to that — whether it harms or helps the child?”

“No, your honor,” Cooper said.

Scalia noted “I take no position on whether it’s harmful or not, but it is certainly true that there’s no scientific answer to that question at this point in time.”

“And that, your honor, is the point I am trying to make. And it is the respondent’s responsibility to prove under rational basis review not only that — that there clearly will be no harm, but that it’s beyond debate that there will be no harm,” stated Cooper.

Kennedy said “there is an immediate legal injury or legal — what could be a legal injury” against 40,000 children in California living with same-sex parents who “want their parents to have full recognition and full status.”

Justices grilled Cooper on his contention that “redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes” with questions about how he viewed marriage for sterile or senior straight couples.

“Even with respect to couples over the age of 55, it is very rare that both couples — both parties to the couple are infertile,” Cooper said before laughter broke out.

“No, really, because if a couple — I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage,” Kagan said.


“Society’s interest in responsible procreation isn’t just with respect to the procreative capacities of the couple itself. The marital norm, which imposes the obligations of fidelity and monogamy, Your Honor, advances the interests in responsible procreation by making it more likely that neither party, including the fertile party –” Cooper said before Scalia quipped, “I suppose we could have a questionnaire at the marriage desk when people come in to get their marriage — you know, ‘Are you fertile or are you not fertile?'”

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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