When it comes to gay marriage, what’s the standard? (Hint: nobody knows)

The whole thing very nearly derailed as a result of the conundrum presented by a fertile lesbian octogenarian.

No, really. And they say lawyers don’t know how to have a good time. Jest we much!

That being said, the oral arguments on Hollingsworth v. Perry provided plenty of meat for your next great Facebook debate, so let’s talk about them.

Standing arguments are not for the fainthearted. If you believe that the standing issue in Hollingsworth v. Perry is an easy call, you are either a 1L, or you do not understand what it means to have standing. The Court has never granted standing to the proponents of a ballot measure. Justice Ginsburg made a fantastic point right off the bat by pointing out that once an initiative has passed, the proponents no longer have a proprietary interest–it becomes law for them, just as it is for everyone else. On the flip side, however, Justice Kennedy raised concerns about allowing standing only to those with an established fiduciary interest to the state; by making this the standard, wouldn’t we be limiting recourse on initiatives to the whims of potentially hostile state officials?

Hell if we know!

Listen. The takeaway from the standing arguments is this: we don’t know. I don’t know. The parties don’t know. Roberts told everyone to move on, which tells me the Supremes either don’t know, or already know what they’re going to do and just enjoy playing with their food before they eat it. What I can promise you is that, unless this case crashes and burns on an issue of standing, you won’t be thinking about standing in the face of a ruling on the merits of this sexy, sexy issue.

The merits arguments happened; I’ll let you read them. Purpose of marriage vs. some weird equal protection standard that I’m still trying to reconcile with my Chemerinsky treatise. The petitioners ran with the procreation-and-family-stability argument, which counsel bolstered wonderfully in his rebuttal by finally remembering Loving v. Virginia’s “similarly situated to a legitimate purpose” standard. Respondents’ argument does not address this standard, because their position is partially founded on the idea that procreation is no longer part of the foundation of the marital institution.

The significant takeaway from the merits arguments is, at least in my opinion, that the respondent was incapable of explaining exactly when it became unconstitutional to exclude gays and lesbians from marriage. This should bother anyone who cares enough about fundamental legal standards to make it past my decision to address the standing issues first. The respondent’s argument on the actual constitutionality (you know, the standard) hinged on the idea that societal evolution has led us to understand more about sexual orientation, and tried to use a suspect standard to describe a self-created class of individuals. This is no standard at all, because it depends fully on the idea that the Constitution is not only a living document, but a document that only achieves full relevancy when society accidentally decides it does. Liberals love this, but it’s hard to create law based on such an argument.

At this point, an “overall takeaway” is pretty much irrelevant. The Supremes will deliberate this case until June, and in the mean time, we’ll all change our avatars and slap duct tape over our mouths and pound out in the wee hours of the morning impassioned defenses of our respective positions. Justice Roberts was right to point out–and is already being raked across the coals for doing so–that the thrust of this case is the label California chooses to slap on state-recognized same-sex relationships. If I have to tell you one thing to watch for in the opinion, it’s this–did the Court acknowledge the fundamental change of what it means to be married, or did they decide the merits based on a new or existing equal protection standard? So much of the controversy surrounding these cases centers on the potential redefinition of marriage–how will this affect the Church? How will this affect the separation of church and state?–and it’s important that we as conservatives keep these questions alive. No matter what the Court decides, I can guarantee you that this is not the final front in the progressive assault on religious tradition.

However, I also believe that it is entirely possible for the Court to come to a conclusion that grants marriage equality without infringing upon the freedom of religion. Their decision does not have to redefine what it means to be married in order to allow for freedom of contract between consenting adults. (Careful, Amy…your libertarian is showing.) I think doing so would set irreparable precedent, and open the door to the myriad legal nightmares that have already begun to creep their way into the courthouse.

From now until June, all I can do is encourage you to focus on the constitutional standard, and to not take the emotional bait the left is so continually successful in offering. Don’t get lazy and accept the premise that no standard can exist until society is ready for it. To do so would be to accept a far more disastrous precedent than could ever be set by a decision in favor of marriage equality.


1 thought on “When it comes to gay marriage, what’s the standard? (Hint: nobody knows)

  1. NotAScientist

    “how will this affect the Church? How will this affect the separation of church and state?”

    Easy. It won’t. Churches can still do what they want. They will no more be forced to marry gays than they are forced to marry Jews.


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