The most charged exchange on the other side of the issue was between Justice Scalia and Ted Olson, who’d like the Court to find a constitutional right to gay marriage in all 50 states:
JUSTICE SCALIA: I’m curious, when — when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial federal question? When — when — when did the law become this?
MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?
JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question.
JUSTICE SCALIA: When do you think it became unconstitutional? Has it always been unconstitutional?
MR. OLSON: When the — when the California Supreme Court faced the decision, which it had never faced before, is — does excluding gay and lesbian citizens, who are a class based upon their status as homosexuals — is it — is it constitutional —
JUSTICE SCALIA: That – that’s not when it became unconstitutional. That’s when they acted in an unconstitutional matter — in an unconstitutional matter. When did it become unconstitutional to prohibit gays from marrying?
MR. OLSON: That — they did not assign a date to it, Justice Scalia, as you know. What the court decided was the case that came before it —
JUSTICE SCALIA: I’m not talking about the California Supreme Court. I’m talking about your argument. You say it is now unconstitutional.
MR. OLSON: Yes.
JUSTICE SCALIA: Was it always unconstitutional?
MR. OLSON: It was constitutional when we — as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that —
JUSTICE SCALIA: I see. When did that happen? When did that happen?
MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.
JUSTICE SCALIA: Well, how am I supposed to know how to decide a case, then —
MR. OLSON: Because the case that’s before you —
JUSTICE SCALIA: — if you can’t give me a date when the Constitution changes?
This is Scalia, the consummate originalist, obliquely driving at the point that the 14th Amendment, as passed, had nothing to do with homosexuality or marriage. In the end, it would be some version of this worry, coupled with a modicum of judicial restraint, that would prevent the Court from ruling broadly that there is a constitutional right to same-sex marriage. Of course, this could be something of a temporary victory for supporters of traditional marriage, as even Cooper argued that one of the reasons for the judiciary not to intervene is that Americans’ conception of marriage is “changing rapidly” and this change is playing out in the democratic process. One way of interpreting that? There’s no need for the judicial imposition of gay marriage; we’ll have the democratic imposition soon enough.
The Kennedy Factor
Like so many cases in the Roberts Court, Hollingsworth is really a battle for Justice Anthony Kennedy’s soul. And, as usual, Kennedy could go either way. On the one hand, Kennedy appeared not to buy gay-marriage supporters’ argument that Prop 8 defenders don’t have standing to defend a law that their elected officials won’t. Kennedy said accepting such an argument created a “one-way ratchet” that favored the state, allowing it to defend only the ballot initiatives it favored and to effectively veto those it did not. But on the merits, Kennedy seemed reluctant to make any substantive ruling on the wisdom or harm of redefining marriage when efforts to do so are, in Justice Alito’s words, younger “than cell phones or the Internet.” Said Kennedy: “We have five years of information to weigh against 2,000 years of history or more.”
Kennedy’s particular bundle of worries could point to a non-decision decision. Kennedy could end up in a minority, with the liberal justices and Chief Justice Roberts holding that Prop 8’s defenders lack standing. As Tom Goldstein of SCOTUSblog suggests, that would mean vacating the Ninth Circuit ruling while letting Vaughn Walker’s original ruling stand. This would settle the question only temporarily, and only in California. Or, if the Court were without a majority on any remedy, the Ninth Circuit’s ruling would be left in place, which would represent a slightly broader victory for gay-marriage proponents but would likewise leave the issue unsettled. In other words, at the end of the day, the likeliest outcome is no outcome.