Meanwhile - C-Span will play the oral arguments about 1pm Eastern Time - about now. I think this is the link but look around if it doesn't come on right away.]
You can hear the attorneys discussing the case outside the Supreme Court here . It begins with the attorneys for Perry at at 18 minutes the petitioners in favor of Prop 8 come on.
Tradition versus the Constitutional Principles of the US
Religion versus the State
The debate, to me, seems to be whether
- those who argue "this is how it has always been done" (even if that isn't altogether the case) should prevail over those who say "but that violates our Constitutional rights."
- those who argue "this is how [our religion] defines marriage" versus those who argue "the State definition of marriage should be based on Constitutional principles, not any particular religion." [I would note, there is nothing here that requires religious organizations to marry people of the same gender, but it allows same sex couples the right to get married legally under the rules of the state/country.]
A brief look at some of the quotes from the Morning Edition piece - organized as I see this debate. The argument against:
"the name of marriage is effectively the institution, and the issue here is whether it will be redefined, essentially to be genderless in that it bears little or no ... relationship to the traditional historic purpose of marriage."
Rebuttal: "it is no justification to say the country has been doing something for hundreds of years, if it flies in the face of the constitutional guarantee of equal protection of the law." I would add that traditional marriages included essentially economic and physical servitude of women to men, and children to parents. It has included slavery and a variety of other practices we no longer accept.
"Marriage owes its existence to the undeniable biological reality that opposite-sex unions — and only such unions — can produce children."
Rebuttal: "the ability or willingness to procreate or the interest in having children sexually has never, ever been a condition for entry into marriage anywhere in this country."
"people too old to have children, or who don't want to have children, have a constitutional right to marry. Even people in prison have a right to marry."
Best for the children
"It's in society's best interest to provide a vehicle to attach those children to the mother and father that are responsible for their creation."
"Same-sex relationships historically, as compared to opposite-sex relationships, are not as stable," he adds. "It's one thing for a kid to not have a dad or not have a mom through the circumstances of life," but it's quite another "to intentionally deprive a child of a mom and a dad, and that's the debate that's going on, whether that's a good and healthy thing that we as a society should embrace."
Rebuttal: [Olson] points to the testimony of the principal expert witness for Proposition 8, who "conceded at trial" that children in gay and lesbian families "would be better off if their parents were allowed to get married."
"There are 37,000 children living in same-sex households in California, and Olson contends that at trial, 'the evidence was that there is no significant distinction in the well-being of children in same-sex households as in opposite-sex households.' What matters, he adds, 'is not the gender of the parents. It is what is in the heart of the parent.'"
And yet, as he puts it,
The basic arguments for allowing same sex marriage are Constitutional.
"The state of California is saying you can marry whoever you want, provided it must be a person of the opposite sex."And the 14th Amendment bans discrimination based on gender.
Rebuttal: Nimocks sees no denial of equal protection because same-sex couples have all the same legal rights as married couples under California's domestic partnership law.
But much of this is background to the legal issues:
- Does the State of California have any rational basis for denying same-sex marriage? and
- (what might prove the Court's way to avoid the issue altogether) whether the Pro-Prop 8 forces have standing to bring the case in the first place.
"The threshold question for the justices, however, is whether there should be any case at all, whether there is any dispute between the state and those challenging the law. California not only refuses to defend Proposition 8 in court but has filed a brief contending that the sponsors of the law have no legal standing to appeal the lower court decisions that invalidated the law. And if the Supreme Court were to agree, the lower court decision would stand, and Proposition 8 would exist no longer.
The court has many other options to choose from in deciding this case. Among the choices: It could uphold Proposition 8 as a valid exercise of the democratic process. It could strike down Proposition 8 in a way that could invalidate similar bans in 31 other states. Or it could rule in a manner that invalidates only California's law."
You can learn way more about this case and the one tomorrow challenging the Defense of Marriage Act at scotusblog.