Gay Marriage Supporters Score TKOs at Supreme Court

      When Jack Baker and Michael McConnell went to court in 1971 to try to be married, justices of the Minnesota and the U.S. supreme courts gave them hardly the time of day. The Minnesota justices had no questions for the couple’s lawyer; one of the justices turned his chair around to show his scorn for their case. At the U.S. Supreme Court, the justices turned the case away without a hearing “for want of a substantial federal question.”
      Four decades later, the tables have turned. Courts, politicians, and the American public appear ready to accept, and in some quarters embrace, marriage equality for gay men and lesbians. Opponents, on the other hand, are having more and more trouble being taken seriously with their attenuated arguments against legal recognition for same-sex couples.
      In advance of last week’s Supreme Court arguments in the pair of gay marriage-related cases, the Washington Post editorially dismissed the arguments against gay marriage as “beyond farfetched.” In the courtroom itself, the attorney defending California’s gay-marriage ban, Proposition 8, had his back against the wall from the get-go. The next day, the lawyer defending the federal Defense of Marriage Act (DOMA) abandoned all the substantive arguments against same-sex marriage and defended the law only on civics textbooks rationales: uniformity and judicial restraint.
      In the Prop 8 case, Hollingsworth v. Perry, conservative inside-the-beltway lawyer Charles Cooper got his comeuppance early when Justice Sonia Sotomayor asked him whether he could specify any circumstance of rational anti-gay discrimination other than marriage. “I cannot,” Cooper conceded, blowing a hole in the arguments for keeping gay teachers out of the classroom or gay history out of public school curricula.
      Cooper had no good answer moments later when Justice Elena Kagan asked him to specify what harm would result to the institution of marriage or to opposite-sex couples from legal recognition of same-sex marriages. Cooper initially tried to avoid the question, but when pressed by Justice Anthony M. Kennedy to answer he could say only that it was “impossible” to foretell the consequences.
      Kagan cornered Cooper again when he contended that it was sensible to reserve marriage for opposite-sex couples to further procreation. When Kagan asked why 55-year-old couples should be allowed to marry at all, Cooper was stuck suggesting that women of that age might still bear children.
      From the conservative side of the bench, Justice Antonin Scalia raised the specter of children harmed by being raised in same-sex households. Sociologists disagree on the subject, Scalia said. But, as Washington Post blogger Ezra Klein pointed out, Scalia either had not read or ignored the brief from the American Sociological Association stating that children raised in same-sex households fare just as well as those in opposite-sex families.
      In the DOMA case, United States v. Windsor, Paul Clement, the former U.S. solicitor general that House Republicans chose to defend the law, signed a brief that incorporated the procreation and harm-to-children arguments against same-sex marriage. But he uttered not a word about those arguments in his half hour before the justices.
      Instead, Clement argued that Congress acted to maintain a uniform national definition of marriage and to allow the issue to be decided in the political process. Sotomayor punched a hole in the uniformity argument. “You are treating the married couples differently,” Sotomayor said, contrasting New York — which recognizes same-sex marriage — with Nebraska, which does not.
      Kagan later confronted Clement with the reason that Congress in fact cited for passing DOMA: “to express moral disapproval of homosexuality,” as the House committee report put it. Clement ran as fast as he could from the language. “If that’s enough to invalidate the statute, then you should invalidate the statute,” he said.
      With both cases argued, Supreme Court watchers were all but unanimous in scoring both sessions as TKOs for the gay marriage proponents. Even so, handicappers were not predicting decisive victories for marriage equality in either case. In the Prop 8 case, the dream team lawyers Theodore Olson and David Boies urged the justices to constitutionalize marriage rights for gays and lesbians nationwide. There were no takers. The justices indeed seemed to shy away from a ruling at all; the appeal could be dismissed on procedural grounds. With Prop 8 struck down by lower courts, gay marriage would return in California, but with no fingerprints from the justices.
      As for DOMA, the liberal bloc plus Kennedy seem likely to rule it unconstitutional. But Kennedy might join solely on federalism grounds, leaving the broader question of extending equal protection rights to gays and lesbians for another day.
      For his part, Chief Justice John G. Roberts Jr. seems content to leave gays and lesbians to the political process. “Political figures are falling over each other to endorse your side of the case,” Roberts told attorney Roberta Kaplan as she ended her argument against DOMA. Gay men and lesbians in the 41 states that do not allow same-sex marriage might well disagree — and have less patience than the happily married chief justice. But Roberts appears correct in sensing the future course of events.