The U.S. Supreme Court declined to rush into the marriage debate Tuesday, and the critical swing-vote judge seemed unwilling to rule in favor of same-sex marriage.
“The problem with the case is that you’re really asking, particularly because of the [unclear] sociological evidence you cite, for us to go into uncharted waters,” Justice Anthony Kennedy told Ted Olson, the libertarian lawyer who argued that the constitution bars different legal treatment of single-sex and heterosexual couples.
Olson pushed back, saying the court had jumped into marriage law in 1967 by striking down laws against interracial marriage.
But Kennedy rejected Olson’s invitation to revisit the racial equality fights of the 1960s. Color-blind marriage “was hundreds of years old in the common law countries [such as England, and only] was new to the United States,” Kennedy retorted.
Kennedy’s caution is critical because he has often provided the swing-vote in the court’s ideological splits. But he did not dismiss same-sex marriage entirely. At another point in the argument, he noted that thousands of children in California are being raised by same-sex parents, adding, ”The voice of those children is important in this case, don’t you think?”
Progressives are hoping to win Kennedy’s vote for a broad effort to redefine marriage. If the court rejects Olson’s pitch, the definition and purpose of marriage will be debated at the ballot box, in the media and in communities.
The judges’ political calculations were welcomed by Jonathan Rauch, a leading advocate of marriage for monogamous gay couples.
“The court just didn’t have enough clear law to decide the questions before it. So it had to do what the Supreme Court must do, and indeed should, when law can’t settle the problem. It openly considered the political consequences of its decisions,” Rauch, a writer and scholar at the liberal Brookings Institution, said in a statement.
The particular lawsuit argued today challenges a 2008 California ballot initiative that defined marriage as a heterosexual union of one man and one woman. Gay advocates want the court to overturn the decisive victory of Proposition 8.
Single-sex marriage is now legal in nine states, following state-level political and legal campaigns by gays and progressives. But 30 states define marriage as a two-sex institution of a woman and a man.
By defining marriage as an institution only for two-sex couples, the law in California and other states “walls-off gays and lesbians from marriage, the most important relation in life,” Olson said.
That exclusion is “stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal, and not okay,” he said.
Marriage is an individual right for individuals, not an institution for keeping parents bound to their children, Olson said.
“Marriage is a personal right. It’s 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 said.
In contrast, the lawyer arguing for Prop 8 state repeatedly that marriage is a social institution intended to aid childrearing.
“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 and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples,” said Charles Cooper.
“That’s what this question really boils down here, whether or not it can be said that for every legitimate purpose of marriage … opposite-sex couples and same-sex couples [are] indistinguishable,” he said.
“And with all due respect to counsel and to the Respondents, that is not a hard question,” Cooper added.
Cooper also pointed to evidence that the combination of a mother and a father is beneficial for children’s development.
“The question before this Court is whether the Constitution puts a stop to that ongoing democratic debate and answers this question for all 50 States,” he said. “It does so only if the Respondents are correct that no rational, thoughtful person of goodwill could possibly disagree with them in good faith on this agonizingly difficult issue.”
That claim won assent from Kennedy.
“I think …. that there’s substance to the point that sociological information is new,” said Kennedy. “We have five years of information to weigh against 2,000 years of history or more.”