Legislating from the Bench on Gay Marriage

A political legislature known as the U.S. Supreme Court held a purely-legislative hearing about homosexual marriage on March 26. The hearing debated raw policy preferences and speculated about benefits for and against homosexual marriage. To anyone trained in the law, it violated almost every law and rule of the U.S. Supreme Court.

Only a lawyer willing to 'tell' on his profession can reveal how disturbing was the High Court's oral argument in Hollingsworth v. Perry. The case concerns the constitutionality of California's Proposition 8 referendum defining marriage as the joining of a man and a woman. Generally liberal California voted 52% in favor of an amendment to the California Constitution, thus outlawing homosexual marriage and polygamy. In passing Proposition 8, voters acted as a legislature under California's referendum process.

Nearly all of the (relevant) oral argument on March 26 involved the advantages or disadvantages of homosexual marriage might be -- and mostly as pure speculation. That is a legislative function to weigh competing interests. What would children adopted by homosexual couples want, Justice Anthony Kennedy asked.

Such speculation is not the U.S. Supreme Court's role. Factual questions are supposed to be established by the legislature or developed in the lower, trial Court. So if there are impacts on any group, those facts have to be established before the case reaches the appellate court. The U.S. Supreme Court Justices should not speculate. But they did... with abandon... violating their own rules.

Justice Kennedy's detour was curious after other justices agonized over whether the Petitioners had "standing" to defend Proposition 8 before the Court. Yet Kennedy launched into wondering what imaginary children might want. Proper and normal procedure, harsh or not, is for such groups to actually participate directly as parties.

The High Court should not be debating advantages and disadvantages for and against Proposition 8. Even by its own strong traditions and precedents, the U.S. Supreme Court must not reconsider whether a law is a good or bad idea or substitute its own opinion in place of the legislature. The legislature makes policy choices and weighs benefits and disadvantages. The High Court must not question factual determinations, so if the legislature decides that a benefit or a problem exists, that is accepted as final.

The only time the U.S. Supreme Court came dangerously close to doing its job, was when Justice Antonin Scalia grilled attorney Ted Olson. Scalia demanded clarification of when homosexual marriage suddenly became a constitutional right. This was not only delightful theater. Scalia was actually making an important legal point. There is no constitutional basis. Since it is clear that homosexuality was not a protected right in the past, and nothing has changed with the Constitution, so there is no constitutional right now. But it was too little, too late in a discussion already way off track.

Under its own well-established precedents, what the Court was supposed to be doing under an "Equal Protection Clause" challenge was:

(A) First ask whether the law burdens members of a "suspect class" (protected minority). If those affected are not a protected minority, the case ends right there. There is an exact legal definition. Homosexuals have never been recognized as a "suspect class," including because (1) homosexuals have normal political clout to defend their interests in the political process and (2) sexual orientation is not an immutable characteristic like skin color or ethnicity. Private sexuality is -- as the courts have always viewed it -- a personal choice. The U.S. Supreme Court should have been focusing on whether it will overturn its own prior precedents to create a new "suspect class" -- and why.

(B) Examine if there is a compelling state interest -- other than a discriminatory purpose. Even if a law affects a suspect class unequally, if the State or nation has a goal sufficiently important, the law is still constitutional. Here, caring for children is more than sufficient justification (as only one) for defining marriage as a man and a woman. That governmental interest has been traditionally and strongly recognized by the courts.

Justice Elena Kagan inquired about excluding married couples who are not capable of having children (too old, for example).  But it is a legislative function to decide the most appropriate way to achieve a compelling state interest.  For example, a legislature might believe that children are benefitted when parents freely choose whether to have a family.  So a legislature could choose to encourage families in which children are likely but never mandated.  That is overwhelmingly the traditional analysis the U.S. Supreme Court normally undertakes.

The rules governing the U.S. Supreme Court give very broad deference to a legislature to craft a remedy for achieving its goal.  So if a legislature chooses to define marriage as a husband and wife, even though some married couple don't have children, that is a legislature's policy judgment.  Traditionally, the High Court will not second guess how a legislature approaches a problem. 

Two exceptions when courts do second-guess the legislature are: (1) if the claimed purpose (as illuminated by the methods) is transparently a phony pretext for discrimination, and (2) if the means for achieving the purpose are significantly over-broad so as to harm the protected class without achieving any valid purpose. Here, it is hard to argue that defining marriage as a man and a woman doesn't reasonably serve the purpose. Homosexual marriage advocates do argue discrimination. But since traditional marriage is thousands of years old, cutting across hundreds of governments, that is a hard sell.

Lawyers made a dreadful mess of the case before the U.S. Supreme Court. The arguments for traditional marriage were fumbled by Charles Cooper, the lawyer for California's Proposition 8 proponents. To say that Charles Cooper mangled the arguments is to suggest that Cooper actually focused on any of the constitutional arguments.

Now, we should not be unkind to Charles Cooper. Yet, when citizens and political observers watch the outcome affecting our entire society nationwide, they deserve to understand what happened. The case for Proposition 8 was not handled well. To this author, a lawyer, Charles Cooper sounded like a stranger to the lawsuit who had been woken up in the middle of the night.

Yet, it is extremely difficult to stand before nine justices who will ruthlessly interrupt and ask questions on their own agendas. The justices ask questions whose byzantine purposes are to try to manipulate their fellow Justices. Justices are often talking to each other, beating drums in long-running arguments hidden behind closed doors, using the lawyers as only theatrical props. That is why the justices' questions can be confusing... They are not meant for us, but are part of private debates. A lawyer's planned presentation will go out the window under that pressure and distraction. But that is why only the best of the best dare attempt it.

And yet a C- performance was also handed in by uber-lawyer Ted Olson, widower of conservative superstar Barbara Olson, who was killed when Flight 77 was hijacked and smashed into the Pentagon. He didn't address the constitutional arguments very clearly, either.

The Court is expected to issue a decision by June. Without a doubt, the decision will have a dramatic impact on our society and society as a whole. No matter what the Court's decision, it is likely to cause deep divisions and strife. It is important for the people to have a clear understanding of what the Supreme Court did or did not do, how, and why. 

Victory margin of Prop. 8 in California corrected to 52%

If you experience technical problems, please write to helpdesk@americanthinker.com