3 Things We Learned About the Future of Prop 8 From SCOTUS


After Tuesday's oral arguments in the first same sex marriage case on the legality of Proposition 8, it would seem that the case is likely to remain a California issue about extending civic rights that have already been granted to their natural end. The main themes discussed by Ted Olson and Charles Cooper, lawyers against and for Prop 8 respectively, indicate that the Court will most likely not turn the case into a nationwide directive to legally accept same sex marriage across all states.

Here are three main themes from the Supreme Court's oral arguments:

1. The ballot measure is unique to California

Justice Ginsburg told Cooper that SCOTUS has never granted the private citizens who put a measure on a ballot jurisdictional standing to represent the state. Cooper argued that the entire point of the ballot measure process is to circumvent state officials who might "half-heartedly represent" something they don't want to enforce. Cooper argued that the petitioners are acting to vindicate the legal process by being the representatives of the ballot measure when the state might not want to, as is the case with the current California Attorney General.

By contrast, Ted Olson argued that the petitioners had no standing to represent California, because as private citizens, they were imposing their own private beliefs on to the state. However, his argument was not sufficient enough to justify a ruling in the case that applies across all 50 states. If SCOTUS rules on this issue, they are likely to restrict the ruling to apply only to California since the measure arose from the state's unique initiative process.

2. Marriage is only for procreation

All the points raised in this area seem to hint that claiming marriage as an institution for procreation either allows for the further legislation of marriage, clearly something unlikely to occur, or the redefinition of marriage from a procreation-only institution to a private right. Ted Olson tried hard to argue this, but Charles Cooper seemed to shy as far away as possible.

Cooper's main argument was that the state of California grants marriage rights as an institution because it has a vested interest in sustaining procreation; since same sex couples cannot reproduce, they should not be allowed to marry. Justice Sotomayor was the first to challenge this idea, by asking Cooper to present any rationale to discriminate against homosexual couples in civic rights other than marriage, which Cooper could not present. This was a key moment in the proceedings that clearly set the stage for this argument to fail.

Justice Kagan further asked if couples over the age of 55 who are not procreating should be granted marriage licenses. Cooper struggled to defend his thesis.Justice Breyer reiterated the issue of sterile couples, and asked whether they should be restricted from marriage as well. Justice Ginsberg voiced her objection to the marriage for procreation argument by pointing out that prisoners, even those with no possibility of parole, have the right to marry even though they will never be able to help raise the child. In this manner, how do prisoners have more rights than same sex couples?

The Justices challenged the redefinition of the purpose of marriage. California already provides most of the legal benefits of marriage to same sex couples, but if SCOTUS were to implement a nationwide mandate, states that do not offer similar civil rights to same sex couples would be forced to adopt something their citizens seem unready or unwilling to accept.

3. Impact on children

Cooper's substantial theme in the second half of his arguments was that same sex marriage and its impact on children, and by extension the state, has not been sufficiently studied. Calling same sex marriage an "experiment," he argued that Prop 8 functioned to "pause" the social upheaval to be caused by same sex marriage. This notion was furthered by Justice Kennedy who said that data collected over the past five years stands against 2000 years of marriage history. This should have been the point that Ted Olson could have solidified his case using anecdotal data and precedent.

Olson's claims on the impact of same sex marriage was challenged by Justice Alito. Olson was unable to reconcile how the children raised in same sex families did not appear to be negatively impacted compared to the children of heterosexual couples, and simultaneously that the children of same sex couples are currently experiencing a real cost because their parents are unable to marry.

The Justices again brought this issue to be uniquely a state issue since states regulate adoption, and California provides some of the widest leeway in this regard.