Of course, the questions they ask doesn't determine how they'll rule. I suspect they don't want to be responsible for issues another Roe v. Wade, at least a majority of the justices don't.
The first day of oral arguments before the Supreme Court on same-sex marriage were watched very carefully by many Americans. Up to this point, one would be hard-pressed to find any instance of any notable personage who is not known as a traditional marriage proponent asking any tough questions about the larger social and familial impact of the effort to redefine marriage. Most assume there are no good questions.
But we saw something very different yesterday. The justices—and not just the conservative ones—were the first notable culture leaders who asked sound, tough questions. A few examples:
Justice Kennedy and others illustrated the historical imbalance between natural marriage and this new proposal. Kennedy expressed that he thinks “there’s substance to the point that sociological information [on same-sex parenting] is new. We have five years of information to weight against two thousand years of history or more.”
Later, Kennedy remarked again:
The problem with the case is that you’re really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that metaphor, there’s a wonderful destination, it is a cliff.Justice Alito also brought the questioning back to Kennedy’s “going blind in uncharted waters” remark as he said to Solicitor General Donald Verrilli:
But what is your response to the argument which has already been mentioned about the need to be cautious in light of the newness of the concept of same-sex marriage? . . .These questions were never really answered.
[Marriage is] thought to be a fundamental building block of society and its preservation essential for the preservation of society. Traditional marriage has been around for thousands of years. Same-sex marriage is very new. . . . You want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? I mean . . . we do not have the ability to see the future.”
Chief Justice Roberts later asked another question of the Solicitor General Verrilli. He wanted clarity on what Roberts referred to as a “somewhat internally inconsistent” argument in the case for same-sex parenting.
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 [marry]. Which is it?Verrilli could only go to the stock “poor them” response which only made Robert’s question more relevant:
Their parents cannot marry and that has effects on them in the here and now. A stabilizing effect is not there. When they go to school, they have to, you know—they don’t have parents like everybody else’s parents.So these kids show harm and no harm by living in such homes. How can that be?
When questioned about the procreative importance of marriage rooted in human history and experience, attorney Ted Olson dismissed the linkage. He said the issue was about alienating a group of citizens from the institution. Chief Justice Roberts interrupted him, remarking,
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.This, of course, is a very important counter to the ubiquitous claim that traditional marriage serves to exclude same-sex attracted people from society. When Olson stayed on the theme that Proposition 8 was inherently prejudiced, Roberts countered, asking if its motivation might have been something different: “Don’t you think it’s more reasonable to view it as a [reaction to the] change by the California Supreme Court of this institution that’s been around since time immemorial?”
This led Justice Scalia to ask the following foundational question:
I’m curious . . . when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? . . . Was it always unconstitutional?Of course, the question is not of a legal nature, per se, but about how this topic has so abruptly become an issue of discussion, rising from an absolute silence over the centuries and millennia until the last few milliseconds of human experience, actualized for the first time anywhere in the world by the Dutch in 2001. As Alito colorfully remarked, same-sex marriage is “newer than cell phones and the Internet.” Why has this “fundamental human right” not been a long-debated (much less recognized) issue like slavery and the standing of women in society have been for thousands of years to varying degrees? It is a very good and central question.<
Olson answered, “It was constitutional when we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that—” Scalia interrupted, asking, “I see. When did that happen? When did that happen?” Olson replied, “There’s no specific date in time. This is an evolutionary cycle.” Scalia then countered, “Well, how am I supposed to know how to decide a case, then . . . if you can’t give me a date when the Constitution changes?”
Justice Sotomayor asked the pointed question of where such a redefinition of marriage would lead us. Where and how do we set limits on how far this goes?
Mr. Olson, the bottom line that you’re being asked [this question]: If you say that marriage is a fundamental right, what state restrictions could ever exist? Meaning, what state restrictions with respect to the number of people . . . I can accept that the state has probably an overbearing interest on protecting a child until they’re of age to marry, but what’s left?Olson, in his response, stated that multi-partner marriage raised obvious concerns about child well-being. How selective. Many—including the French—see the obvious well-being concerns with making motherhood and father merely optional and sentimental.
Olson frequently asserted this issue’s similarity with Loving v. Virginia, the 1967 Supreme Court decision striking down anti-miscegenation laws. It is a very emotional, but inapplicable comparison. Kennedy called him on it, curtly responding “that’s not accurate.”
Near the end of the day, Sotomayor asked a question that gave an indication where the court could go with this case: find a good reason to punt.
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? We let issues perk, and so we let racial segregation perk for fifty years from 1898 to 1954. . . . And now we are only talking about, at most, four years.