Supreme Court: Oral Argument on Same-Sex Marriage

Today the Supreme Court heard oral arguments on California’s Proposition 8, which amends the State Constitution to define marriage only as a union between a man and a woman.  The Court heard from attornies representing the parties on each side, as well as from the Solicitor General, who is, on behalf of the Obama administration, urging the Court to invalidate Prop 8.

This is not the only day this week the Court will hear arguments on the question of same-sex marriage.  It has taken two cases on the issue, the other one being a challenge to the federal law defining marriage as a union of a man and a woman for federal purposes.  The Court hears arguments on the Defense of Marriage Act tomorrow.

You can read the whole transcript of today’s oral argument here.  There is already a lot of commentary on this.  Suffice it to say that today’s oral argument certainly does not tell us clearly how the Court will rule on this issue.  There is even some question whether the Court will rule at all on the merits of the case.  The Justices today kicked around possible arguments that the litigants defending Prop 8 don’t really have standing under federal principles to bring the case.  This issue arose because elected officials in California deceded not to defend the constitution amendment California voters had passed in the 2008 elections.


On the merits, however, some interesting points were raised, and in one case from an interesting quarter.

Not surprising was the skepticism about a constitutional right to same-sex marriage expressed by Justice Scalia and Chief Justice Roberts.  Scalia pressed Ted Olson, the litigator against Prop 8, on a question that bears on the implicit use of “living constitutionalism” to invalidate Prop 8.  When, Scalia asked, did the traditional definition of marriage become unconstitutional?  Olson was in a bind.  He did not want to suggest that it had always been unconstitutional, since that would imply that the original framers and ratifiers of the Constituition (whether of the Bill of Rights in 1791 or of the 14th Amendment in 1868) had thought that it required same-sex marriage–an idea that probably no serious person would try to defend.  On the other hand, neither could Olson point to a particular time at which California’s definition of marraige had become unconstitutional.  There is, he said, a process of evolution on these things.  That, Scalia responded, is exactly the problem.  Scalia was saying that as a Judge he needs some clear criterion on which to rely if he is to vote to invalidate a democratically-enacted law.  Olson’s appeal to a vague evolutionary process does not accomplish anything, since even if Scalia believed in it he would still have no way of knowing at what point we find ourselves in that process.  Maybe we are not there yet.  Olson’s argument could give no guidance on this question.

Chief Justice Roberts also intervened to offer an observation that I think is helpful to remember.  Proponents of same-sex marriage often speak as if the traditional definition of marriage were simply the result of bigotry.  Roberts reminded us that there is something tendentious about this claim.  After all, he observed, people did not invent marriage at certain point in the past and decide to exclude homosexuals from it.  Rather it arose to serve certain purposes that seemed to have nothing to do with homosexuality.

What was a bit surprising was to find Justice Sotomayor, one of President Obama’s appointees, raising a question about the consequences of finding a right to same-sex marriage.  Could you let it stop there, she wondered?  She asked Olson, in effect: since you say marriage is a fundamental right from which the state cannot exclude homosexuals, how could you then maintain any other exclusions that the law might provide?  How could you sustain the legitimacy of laws prohibiting, say, polygamy?  This is a good question.  Proponents of same-sex marriage say that the traditional definition excludes them from marriage.  To this the defenders of the traditional definition say: no, you are still free to marry a consenting person of the opposite sex.  In response, the critics of the traditional definition might well say: but that is of no use to me, since I don’t want to marry a person of the opposite sex.  Similarly, a person who wants to enter a polygamous marriage might well complain that the law currently forbids his or her marriage.  In response, we could say: no, you are perfectly free to marry any unmarried consenting person.  To that the polygamist might say: that so-called “right” is useless to me, because I want to marry this already married person, and that person consents, as does that person’s existing spouse.  If the Court says majorities cannot choose a definition of marriage that runs contrary to the personal desires of one set of objecting citizens, by what constitutional principles do it say majorites can do so to some other set of objecting citizens?



  • Maria Rosal

    What God created cannot be changed. Marriage was clearly defined by God and is only ONE KIND. Men has to come out with another WORD and definition. If the core of the problem they are facing is about fairness in taxes, benefits and equal rights as couples, the government might find legal WAYS to guarantee benefits to these UNIONS of living- in-friends without calling and define it as a MARRIAGE . Regardless, we understand that God loves all HIS children the same, no matter what. He is against slavery and gave us free will to chose HIM or not. But HE also is a JEALOUS GOD! We should remember Jesus words: “Give to Ceasar what belongs to Ceasar’s and to God what belong to God’s. WE should not mess-up with God and HIS will but accept it : MARRIAGE is WORD of GOD. In the mean time let’s hope and pray North Korea don’t release his nuclear missiles on USA or on any part of the World. It seems Russia must have to be consecrated to the Immaculate Heart ASAP cause WW III is lurking on the horizon; the Church is being attack and persecuted; and hopefully honoring the Fatima 3rd request might bring some stability and sanity to a world going in a “downward spiral” – and into a “black hole” (nuclear blast) … into nothingness.

  • Ogma

    Six of the nine Supreme Court Justices are Roman Catholic. They have taken an oath to “administer justice without respect to persons, and do equal right to the poor and to the rich…”
    God has given them the Test of Abraham.

  • Tim Rohr

    Unfortunately she waded into the polygamy model and Olson was prepared for it and he easily discounted it. The court would do well to stick with one question: “If you would not limit marriage to one man and one woman, what would you limit it to and why, or would you limit it at all?

    The question is not answerable because SSM does not seek marriage but the social legitimacy it cannot grant itself through any other means as there is no natural, cultural or historical pedigree for it.

  • Manuel

    Jesus instituted marriage on Earth as between one woman and one man.

    No court should be messing with God’s plan whatsoever.

    These filthy pigs can practice whatever they want. You will face God one day and answer for your filthy and sinful lifestyle.


    • jason

      We really feel your christian love coming through in your post. Filthy pigs, huh?? You need to show some respect for your fellow man, Manuel….


      Manuel ~ Please understand that when you call several of my cousins, my son-in-law’s mother and a few of my fellow parishioners “filthy pigs” it makes it difficult for us to a conversation about the issue, guided by Christian charity. Happy Easter, Greg

    • Annie

      There are logical arguments that don’t rely on religion which are much more compelling in our pluralistic society. A mindset like that displayed in your post makes it more difficult for the rest of us (who indeed believe in Christ’s teachings) to engage the culture in a logical debate. Please, please stop using religious arguments in the public sphere. It only supports the opposition’s charge that we are religious nuts who want to impose beliefs on people. I don’t want to impose beliefs on people. I want to impose logic, which goes hand-in-hand with faith because the Lord’s infinitely more perfect intellect created all realities. Stop making this harder for the rest of us!

  • Roger

    Justice Sotomeyer identifies the key problem the Courts will face if they find a right to same sex marriage. How do we define marriage and how do we limit marriage if at all? A friend of mine is an activist who rescues young women/girls from polygamist sects. He has shown me literature the sects have prepared. They are well written and other than “marriage to minors” and welfare fraud, which the polygamist sects do not consider, I cannot see how plural unions among consenting adults would not valid if same sex marriage is valid. But the real test will not be breakaway polygamy sects. The real test will be a suit brought by an Islamic man whose marriages are legal in his home country and allowed by his religion.



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