One of the more curious tidbits to arise out of yesterday’s oral arguments (pdf) over California’s Prop 8 was that that state’s constitution has been amended some 500 times. Those of us who don’t live there have always thought the place a little squirrely, but come on. That averages out to three amendments to its foundational document every year!
Donald Verrilli, esquire and Solicitor General of the land, was there as a sort of official buttinksy, and was fretting that if Prop 8 were upheld, there would be a “permanent ban” on same-sex marriage. This prompted Justice Alito to remind Verrrilli that “permanent” doesn’t mean what he thinks it means, at least in the Golden State.
The next matter, of significantly more import, was a comment by Theodore Olson, another esquire who sought the demolition of Prop 8. He said, “The California Supreme Court, like this Supreme Court, decides what the law is.” Somebody wise once said all flattery should be resisted. Justice Scalia, at least, did not resist, and agreed that the Court decides the law.
This is false, though Scalia is far from the only one to believe it (given the remainder of his questioning, it is more than possible Scalia was being sardonic and does not literally believe the Court makes law). Congress decides the law. The Court assumed the role of saying only whether those laws accord with the Constitution. The Court cannot make law, though courts often do. Chief Justice Roberts used this line of reasoning when upholding Obamacare, did he not?
Many want the Supreme Court to make the law as the 9th Circuit Court did, and discover a right to marriage for same-sex couples which was previously hidden and that only justices can see. Presumably they will wear special glasses. Incidentally, that’s “couples” and not “triples” or “quadruples”, etc. After all, if Bob & Ted can wed, why not Bob & Ted & Mark & John?
No, really. Why not? (It will be interesting to see who avoids this question. It is not an argument to say, “Nobody is asking for this”, because that is false and an evasion.)
Item number three: with no exception, everybody in the oral arguments assumed marriage is a right, is necessary, good, the foundation of society. All paid this institution stirring compliments. All assumed, or said, the state of matrimony just wonderful. All assumed it was two people. Why is that?
Number four, Chief Justice Roberts questioning Verrilli:
— I — it seems to me that your position that you are supporting is somewhat internally inconsistent. We see the argument made that there is no problem with extending marriage to same-sex couples because children raised by same-sex couples are doing just fine and there is no evidence that they are being harmed. And the other argument is Proposition 8 harms children by not allowing same-sex couples to marriage. Which is it?
General Verrilli stammered out “stabilizing effect”, but could offer nothing concrete. Many are talking of the “science” of kids raised under dual-same-sex-parent households, agreeing that there are many uncertainties. Mark Regnerus’s study wasn’t brought up, but Regnerus suggested other than the desired answer.
Anyway, it wouldn’t matter if kids statistically were the same under dual-same-sex-parent households as under real families, because the question of re-defining marriage is not a scientific but a moral question.
This was missed by Charles Cooper, esquire number three and the only fellow supporting Prop 8, who was asked by Justice Kagan:
…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?
Kagan was thinking that old women have difficulty becoming pregnant, yet still these aged females wed. She was trying to get Cooper to admit that sometimes marriages, even though primarily designed for procreation, isn’t always. Cooper didn’t buy it and said the government would have to ask whether each of a couple was fertile on a marriage certificate.
But Cooper missed his chance to bring up natural law. It’s not that every instance of a real marriage produces issue, but that it is in the nature of one male and one female becoming one flesh to bring forth issue. That some marriage are against this nature does not invalidate the nature. (Bonus points for examples why. Hint: what does “men are taller than women” mean?)
Lastly, it’s anybody’s guess what the Court will do. Though I do note that Justice Sotomayor’s questions were not entirely “with the program.” I mean the progressive program. Perhaps that reflects her upbringing? We’ll see.