Supreme Court unlikely to redefine ‘marriage,’ court-watchers say
"Who gave America the right to define marriage" God.
Observers of the Supreme Court believe the nine justices will not impose a legally binding redefinition of marriage on all 50 states, because they expressed uncertainty about the effects same-sex “marriage” has on children and society. However, California's Proposition 8, the state constitutional amendment that defines marriage as a union between one man and one woman, may still be struck down.
The High Court heard oral arguments yesterday into the constitutionality of Proposition 8 as thousands gathered outside on both sides of the issue. Brian Brown of the National Organization for Marriage has said more than 10,000 Americans attended the first-ever March for Marriage. The oral arguments themselves were filled to capacity, withe scalpers reselling the free tickets for up to $6,000apiece.
Redefining marriage “may turn out to be a good thing; it may turn out not to be a good thing,” saidJustice Samuel Alito. “But 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.”
“On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?” he asked U.S. Solicitor General Donald Verrilli.
The undefined impact that redefining marriage would have on children seemed to weigh heavily on swing vote Justice Anthony Kennedy.
Justice Anthony Kennedy is considered the court's swing vote.
“I think there's substance to the point that sociological information is new,” he said. “We have five years of information to weigh against 2,000 years of history or more.”
That comment strikes at the heart of the Obama administration's amicus brief in the case, which states there is an “overwhelming expert consensus...that children raised by gay and lesbian parents are as likely to be well adjusted as children raised by heterosexual parents.”
However, Dr. Mark Regnerus of the University of Texas at Austin recently found, in a study based upon a large random sample, that the children of gays and lesbians were more than four times as likely to report having been raped and up to 12 times as likely to have been sexually touched by a family member than those from intact heterosexual households. They were more than twice as likely to have contemplated suicide, and scored significantly lower than children raised by heterosexuals on a number of other variables.
In another study, Dr. Douglas Allen of Simon Fraser University found that the children of married heterosexuals are 35 percent more likely to make normal progress through school than the children of same-sex households. Even the children of single parents were 23 percent more likely to progress through school than the children of homosexual parents.
While a number of studies have also found that children raised by homosexuals are not disadvantaged, many of these studies have been criticized for being based upon small, often hand-picked samples, and for relying on the responses of the homosexual couple themselves, rather than their children.
In arguments before the Supreme Court this week, attorney Charles Cooper defended Proposition 8 by highlighting the historic link between marriage and child-bearing.
“The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults,” he said.
Justice Elena Kagan asked if that definition might justify a law banning marriages in which both parties were over the age of 55.
When Cooper responded that men may still be fertile at that age, Kagan replied, “I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage,” to laughter.
But Cooper persevered. “Very few men outlive their own fertility,” he said. “The marital norm which imposes upon that couple the obligation of fidelity... [is] designed, Your Honor, to make it less likely that either party to marriage will engage in irresponsible procreative conduct outside of that marriage... So that, should that union produce any offspring, it would be more likely that that child or children will be raised by the mother and father who brought them into the world.”
Justice Antonin Scalia then cracked a joke about the late Senator Strom Thurmond.
Scalia engaged in the most tense moment of the exchange, asking, “When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?...When did the law become this?”
Justice Kennedy raised separate concerns with former Solicitor General Ted Olson during arguments over whether the voters of California have standing to argue the case before the Supreme Court. He feared the contention that proponents of the law could not sue created a “one-way ratchet” that disenfranchises voters and “allows governors and other constitutional officers in different States to thwart the initiative process.”
Conversely, the court's liberal wing questioned the government's argument that California cannot ban gay “marriage” if it adopts gay civil unions.
Justice Stephen Breyer said it might be more harmful to write an opinion that would discourage states from passing civil unions.
Some experts believe the doubt raised over the impact of instituting a right to sodomy-based marriage will restrain the justices from issuing a decision that, like Roe v. Wade, imposes a social engineering decision upon a nation before the democratic debate has run its course.
Legal authorities believe the justices may decide the petitioners lack standing to sue, or they may fail to reach a majority. These decisions would leave in place a decision to strike down the Proposition made by either the district court or Ninth Circuit Court, respectively.
Tom Goldstein of SCOTUSblog speculated, “The upshot of either scenario is a modest step forward for gay rights advocates, but not a dramatic one. The Court would stay its hand for some time for society to develop its views further. But combined with a potentially significant ruling in the DOMA case being argued tomorrow, the Term will likely nonetheless end up as very significant to gay rights.”
However, determining a case's outcome from the tenor of oral arguments has proven as difficult as defending a case before the body itself.
The court heard a separate challenge to the constitutionality of the federal Defense of Marriage Act (DOMA) today.
