This column by ACRU Senior Legal Analyst Ken Klukowski was published March 26, 2013 on

In Tuesday’s oral arguments for the Supreme Court case Hollingsworth v. Perry, Justice Anthony Kennedy cautioned anti-Proposition 8 lawyer Ted Olson, “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, [or] it is a cliff.”

With that, it looks likely that the Supreme Court will hold the U.S. Constitution does not include a right to same-sex marriage that trumps the will of the voters expressed through the democratic process. But it’s still anyone’s guess.

If they even reach the issue at all. California’s governor and attorney general abdicated their duty by refusing to defend the California Constitution in court. There was significant discussion in Tuesday’s argument in Hollingsworth v. Perry as to whether the defenders of California’s Prop 8–amending the California Constitution to reaffirm marriage as one man and one woman–have standing as private citizens under Article III of the U.S. Constitution to defend the state constitution, since the state itself refuses to do so.

The likely swing vote on this issue of “standing” is Chief Justice John Roberts. Kennedy tipped his hand that he might regard the official sponsors of Prop 8–which the California Supreme Court unanimously held are empowered by the California Constitution to defend the measure in court–as meeting the U.S. Constitution’s requirements for the lawsuit to proceed. Roberts, however, didn’t tip his hand one way or the other, so it’s not clear whether there are enough votes to move forward to decide the merits of the case.

If the Court does reach the merits, it appears almost certain to be a 5-4 decision one way or the other.

Prop 8 is being defended by Charles Cooper and the Alliance Defending Freedom. On the merits, Cooper began that, “people throughout the country engage in an earnest debate over whether the age-old definition of marriage should be changed to include same-sex couples. The question before this Court is whether the Constitution puts a stop to that ongoing democratic debate and answers this question for all fifty states.”

After Kennedy cautioned that the Court would be plunging the nation into uncharted waters by decreeing a right to gay marriage, anti-Prop 8 lawyer Ted Olson argued that interracial marriage was uncharted waters before the Supreme Court struck down a Virginia law against such marriages in 1967. Kennedy rejected that, saying interracial marriage “was hundreds of years old in the common-law countries.”

Before today, Roberts never had cause to weigh in on marriage. But today he pushed back against Olson’s argument of how gay marriage fit within the definition of a marriage, saying, “If you tell a child that somebody has to be their friend, I suppose you can force the child to say, ‘This is my friend,’ but it changes the definition of what it means to be a friend… All you’re interested in is the label and you insist on changing the definition of the label.”

Olson later responded that what truly makes a marriage is emotional commitment. In doing so, he was arguing against Cooper’s position that as a social institution marriage is about providing structure for man-woman relationships, because only those relationships can naturally create children. Society’s interest in marriage, Cooper continued, is to create a stable structure for raising children, especially since pregnancies can be unplanned.

Roberts suggested he might side with Cooper on that point, telling Olson, “You’ve emphasized that and you’ve said, well, it’s because of the emotional commitment [that marriage is a fundamental right]. Maybe it is the procreative aspect that makes it a fundamental right.”

There was also a lively exchange between Olson and Justice Antonin Scalia. Scalia said, “We don’t prescribe law for the future. We decide what the law is… When did it become unconstitutional to exclude homosexual couples from marriage? 1791 [the year the Bill of Rights was adopted]? 1868, when the Fourteenth Amendment was adopted?”

That question put Olson on the ropes, as he refused to answer it. Scalia pressed repeatedly. And his point was that something is not a constitutional right if it wasn’t unconstitutional from the time the relevant constitutional provision was adopted. For example, segregated schools weren’t eradicated until 1954, but it was unconstitutional from the moment the Fourteenth Amendment was adopted in 1868 to invalidate laws that discriminated on the basis of race.

President Obama’s Solicitor General Donald Verrilli also participated today, but his arguments were not well received. His argument was essentially that only those states that have civil unions violate the U.S. Constitution if they do not officially call it marriage. It appears that Court will not be moving in that direction.

Despite Kennedy’s other comments, it is unclear which way he is going on this case. Speaking to the pro-traditional marriage lawyer Charles Cooper, he noted that there are almost 40,000 children living with homosexual parents in California. Then he added, “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?”

Kennedy also asked what the harm would be of gay marriage. To this, Scalia responded, “I don’t think we know the answer to that. Do you know… whether it harms or helps the child?” As came up repeatedly, there is no long-term social science to answer that question. Then he added that there could be deleterious effects, and the courts just don’t know at this point.

Where Scalia was going with that is that when such things are unclear, the courts leave legislatures and the voters to work out such things instead of make them constitutional issues when they are not found in the words of the Constitution. “Marriage” is not mentioned a single time in the Constitution.

Therefore, the conservatives were arguing that this is a matter to be decided by the voters. Generally speaking, federal courts do not have authority to trump the democratic process when the Constitution is silent. This is especially true here, in a novel social institution. As Justice Samuel Alito noted, the Internet and cell phones have been around longer than same-sex marriage anywhere on the planet. Unelected judges should tread carefully under such circumstances.

A decision is expected in late June. The Court will hear arguments in U.S. v. Windsor, the case dealing with the Defense of Marriage Act, on Wednesday.