10 quotes from the same-sex marriage Supreme Court oral arguments and what they might mean (part 1)

March 28, 2013

The Supreme Court in WashingtonOn Tuesday and Wednesday of this week, the Supreme Court heard oral arguments on two cases involving same-sex marriage. One of the cases challenged California’s voter-approved ban on gay marriage, Proposition 8. The other challenged the 1996 Defense of Marriage Act, limiting marriage to one man and one woman for purposes of federal laws and benefits.

Although official decisions likely will not be announced until late June or early July, it’s possible to draw several inferences based on the justices’ comments and queries during the oral arguments. With that said, here is a compilation of ten important quotes from the Supreme Court justices — five from each case — and how they may suggest the Court is leaning. In today’s post I will look at five quotes from Hollingsworth v. Perry. Tomorrow I’ll examine five more from United States v. Windsor in Part 2 of this series.

Case: Hollingsworth v. Perry, No. 12-144

Challenging: Proposition 8, California’s Ban on Same-Sex Marriage

Quote No. 1: “Suppose a state said that, Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?” — Justice Elena Kagan

Analysis: Justice Kagan is questioning the argument that marriage is based on the ability to procreate, which is why it should only apply to one man and one woman. The attorney defending Proposition 8 replied that even in marriages between a man and a woman over the age of 55, at least one of the spouses is likely still fertile, which drew laughter in the courtroom.

Quote No. 2: “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.” — Justice Samuel Alito

Analysis: Alito could be indicating that the Court is reluctant to defend gay marriage because it is so new and hasn’t yet stood the test of time. The fact is that we don’t know the social implications of gay marriage because it simply hasn’t been around long enough. At this point, all we can do is surmise.

Quote No. 3: “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.” — Chief Justice John Roberts

Analysis: This quote could indicate the Court’s unwillingness to define gay marriage as a fundamental constitutional right. Instead, the Chief Justice appears to be hinting that marriage is a social institution that developed organically over time without explicitly excluding groups of people. It may suggest that the conservative Chief Justice would prefer to let gay marriage establish itself in society as it has done so far in the states that allow it.

Quote No. 4: “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? 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?” — Justice Sonia Sotomayor

Analysis: Justice Sotomayor is asking whether homosexuals can be treated differently in any other arena besides marriage, even using the rational basis test, the most lenient standard for upholding a law. The attorney defending Proposition 8 answered in the negative. This begs the question: Is the institution of marriage is unique enough to treat it differently than all other rights?

Quote No. 5: “If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?” — Justice Sonia Sotomayor

Analysis: Even though Sotomayor appeared skeptical that marriage rights can be denied to same-sex couples, she also appeared skeptical that this is the right time or venue to address the changing societal issue. This could suggest that the Court is hesitant to define a fundamental constitutional right to gay marriage when, in a couple years, the issue may be much less volatile.