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Chief Justice John Roberts voiced doubt, saying that “a state can’t authorize anyone to proceed in federal court,” because federal judges themselves determine who may bring claims.
Yet these questions of legal standing were in the case when the appeal from Proposition 8 supporters arrived on the Supreme Court’s doorstep last year. And the court nonetheless took the appeal. It requires only four of the nine justices to accept a case for oral arguments; it takes five to resolve it.
Perhaps the thorny procedural hurdles became more obvious as the justices prepared for Tuesday’s hearing. Or, perhaps that area might be the only one of common ground. There appeared to be no majority for either side’s constitutional assertions.
Cooper argued that the states may limit marriage to heterosexual couples because of their interest in procreation and child rearing. Justice Elena Kagan, particularly, hammered at that notion, asking whether the court could block an older couple, possibly beyond their fertile years, from marrying.
Olson argued that Proposition 8 “walls off gays and lesbians from marriage,” the most important relationship they might have. Roberts expressed doubt that California was plainly excluding a particular group. “When the institution of marriage developed historically, people didn’t get around and say ‘let’s have this institution, but let’s keep out homosexuals.’ The institution developed to serve purposes that, by their nature, didn’t include homosexual couples.”
Justice Antonin Scalia, who has been the most outspoken opponent of gay rights on this court, challenged Olson to say exactly when same-sex marriage became the constitutional norm.
Olson could not but rather asserted: “It was constitutional when we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control. There is no specific date in time. This is an evolutionary cycle.”