Before the Supreme Court justices turned to the merits of the case on Proposition 8, California's ban on same-sex marriage, they seemed perplexed by a procedural issue: whether the petitioners had legal standing to appeal a lower-court ruling that struck down the ballot measure. Having taken the appeal, they cannot easily decide to avoid the substantive question of whether same-sex couples have a constitutionally protected right to marry in California and elsewhere in the country.
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If the court decides the case on the merits, it is hard to imagine that a majority could be swayed by the arguments offered by Charles Cooper, the lawyer for the marriage ban's supporters. Even if his presentation had been more fluent, there was no way to overcome the incoherence of his position.
The core of Mr. Cooper's argument was that a ruling allowing same-sex marriage would be "redefining" marriage in a way that undermines the "responsible procreation" of children. Yet California allows same-sex couples to adopt children, and many heterosexual couples who can't have children get married.
When Justice Sonia Sotomayor asked him if — outside the marriage context — he could "think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens," he could not. When Justice Elena Kagan asked him to describe "what harm to the institution of marriage or to opposite-sex couples" would occur if same-sex couples were allowed to marry, he failed to provide a single example. He also contended that "debate over whether the age-old definition of marriage should be changed to include same-sex couples" should be left to the states but could not explain why the Constitution would permit this kind of discrimination.
Neither the Federal District Court in California nor the United States Court of Appeals for the Ninth Circuit found any of his arguments persuasive.
By contrast, Theodore Olson, representing the supporters of same-sex marriage, had the benefit of solid logic on his side. Noting the long line of Supreme Court cases that have declared marriage a fundamental right, he argued that society had no rational basis denying same-sex couples the dignity that marriage affords. Justice Antonin Scalia, with his familiar sarcasm, said: "I'm curious. When did it become unconstitutional to exclude homosexual couples from marriage?" Mr. Olson politely answered with two questions: "When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?"
Justice Anthony Kennedy, who may be a swing vote, remarked, "We have five years of information to weigh against 2,000 years of history or more." But he pointed out to Mr. Cooper, "There are some 40,000 children in California" with same-sex parents and "they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?"
Solicitor General Donald Verrilli Jr., in support of Mr. Olson's clients, made a cautious, lawyerly argument that the court should rule that California and the seven other states that allow civil unions equivalent to marriage could not deny same-sex couples the status of marriage — and should leave for another day the broader issue as applied to all other states. But he acknowledged that "waiting is not a neutral act" and that it "imposes real costs."
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