CHIEF JUSTICE ROBERTS: So -- so your case -- your case would be different if Proposition 8 was enacted into law prior to the California Supreme Court decision?
are defined by their status. There is no question about that.
JUSTICE SCALIA: So it would be unconstitutional even in States that did not allow civil unions?
MR. OLSON: We do, we submit that. You could write a narrower decision.
JUSTICE SCALIA: Okay. So I want to know how long it has been unconstitutional in those -
MR. OLSON: I don't -- when -- it seems to me Justice Scalia, that -
JUSTICE SCALIA: It seems to me you ought to be able to tell me when. Otherwise, I don't know how to decide the case.
MR. OLSON: I -- I submit you've never required that before. When you decided that -- that individuals -- after having decided that separate but equal schools were permissible, a decision by this Court, when you decided that that was unconstitutional, when did that become unconstitutional?
JUSTICE SCALIA: 50 years ago, it was okay?
MR. OLSON: I -- I can't answer that question, and I don't think this Court has ever phrased the question in that way.
JUSTICE SCALIA: I can't either. That's the problem. That's exactly the problem.
MR. OLSON: But what I have before you now, the case that's before you today, is whether or not California can take a class of individuals based upon their characteristics, their distinguishing characteristics, remove from them the right of privacy, liberty, association, spirituality, and identity that - that marriage gives them. It -- it is -- it is not an answer to say procreation or anything of that nature, because procreation is not a part of the right to get married.
JUSTICE KENNEDY: That's really -- that's a broad argument that you -- that's in this case if the Court wants to reach it. The rationale of the Ninth Circuit was much more narrow. It basically said that California, which has been more generous, more open to protecting same-sex couples than almost any State in the Union, just didn't go far enough, and it's being penalized for not going far enough. That's a very odd rationale on which to sustain this opinion.
MR. OLSON: This Court has always looked into the context. In, for example, the New Orleans case involving the gambling casinos and advertising, you look at the context of what was permitted, what was not permitted, and does that rationalization for prohibiting in that case the advertising, in this case prohibiting the relationship of marriage, does it make any sense in the context of what exists?
JUSTICE ALITO: Seriously, Mr. Olson, if California provides all the substantive benefits of marriage to same-sex domestic partnerships, are you seriously arguing that if California -- if the State -- if the case before us now were from a State that doesn't provide any of those benefits to same-sex couples, this case would come out differently?
MR. OLSON: No, I don't think it would come out differently, because of the fundamental arguments we're making with respect to class-based distinctions with respect to a fundamental right. However, to the extent that my opponent, in the context of California, talks about child-rearing or adoptions or -- or of rights of people to live together and that sort of thing, those arguments can't be made on behalf of California, because California's already made a decision that gay and lesbian individuals are perfectly suitable as parents, they're perfectly suitable to adopt, they're raising 37,000 children in California, and the expert on the other side specifically said and testified that they would be better off when their parents were allowed to get married.
JUSTICE ALITO: I don't think you can have it both ways. Either this case is the same, this would be the same if this were Utah or Oklahoma, or it's different because it's California and California has provided all these -
MR. OLSON: I -- I think that it's not that we're arguing that those are inconsistent. If the fundamental thing is that denying gays and lesbians the right of marriage, which is fundamental under your decisions, that is unconstitutional, if it is -- if the State comes forth with certain arguments -- Utah might come forth with certain justifications. California might come forth with others. But the fact is that California can't make the arguments about adoption or child-rearing or people living together, because they have already made policy decisions. So that doesn't make them inconsistent.
CHIEF JUSTICE ROBERTS: So it's just about -- it's just about the label in this case.
MR. OLSON: The label is -
CHIEF JUSTICE ROBERTS: Same-sex couples have every other right, it's just about the label.
MR. OLSON: The label "marriage" means something. Even our opponents -
CHIEF JUSTICE ROBERTS: Sure. If you tell -- if you tell a child that somebody has to be their friend, I suppose you can force the child to say, this is my friend, but it changes the definition of what it means to be a friend.
And that's it seems to me what the -- what supporters of Proposition 8 are saying here. You're - all you're interested in is the label and you insist on changing the definition of the label.
MR. OLSON: It is like you were to say you can vote, you can travel, but you may not be a citizen. There are certain labels in this country that are very,very critical. You could have said in the Loving case, what -- you can't get married, but you can have an interracial union. Everyone would know that that was wrong, that the -- marriage has a status, recognition, support, and you -- if you read the test, you know -
CHIEF JUSTICE ROBERTS: How do we know - how do we know that that's the reason, or a necessary part of the reason, that we've recognized marriage as a fundamental right? That's -- you've emphasized that and you've said, well, it's because of the emotional commitment. Maybe it is the procreative aspect that makes it a fundamental right.
MR. OLSON: But you have said that marriage is a fundamental right with respect to procreation and at the same level getting married, privacy -- you said that in the Zablocki case, you said that in the Lawrence case, and you said it in other cases, the Skinner case, for example. Marriage is put on a pro- -- equal footing with procreational aspects. And your -- this Court is the one that has said over and over again that marriage 6 means something to the individual: The privacy, intimacy, and that it is a matter of status and recognition in this -
JUSTICE SOTOMAYOR: Mr. Olson, the bottom line that you're being asked -- and -- and it is one that I'm interested in the answer: If you say that marriage is a fundamental right, what State restrictions could ever exist? Meaning, what State restrictions with respect to the number of people, with respect to -- that could get married -- the incest laws, the mother and 16 child, assuming that they are the age -- I can -- I can accept that the State has probably an overbearing interest on -- on protecting a child until they're of age to marry, but what's left?
MR. OLSON: Well, you've said -- you've said in the cases decided by this Court that the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing. And if you -- if a State prohibits polygamy, it's prohibiting conduct. If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status. It's selecting them as a class, as you described in the Romer case and as you described in the Lawrence case and in other cases, you're picking out a group of individuals to deny them the freedom that you've said is fundamental, important and vital in this society, and it has status and stature, as you pointed out in the VMI case. There's a -- there's a different -
JUSTICE SOTOMAYOR: Is there any way to decide this case in a principled manner that is limited to California only?
MR. OLSON: Yes, the Ninth Circuit did that. You can decide the standing case that limits it to the decision of the district court here. You could decide it as the Ninth Circuit did -
JUSTICE KENNEDY: The problem -- the problem with the case is that you're really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that metaphor, there's a wonderful destination, it is a cliff. Whatever that was.
JUSTICE KENNEDY: But you're -- you're doing so in a -- in a case where the opinion is very narrow. Basically that once the State goes halfway, it has to go all the way or 70 percent of the way, and you're doing so in a case where there's a substantial question on - on standing. I just wonder if -- if the case was properly granted.
MR. OLSON: Oh, the case was certainly properly granted, Your Honor. I mean, there was a full trial of all of these issues. There was a 12-day trial, the judge insisted on evidence on all of these questions. This -- this is a -
JUSTICE KENNEDY: But that's not the issue the Ninth Circuit decided.
MR. OLSON: The issue -- yes, the Ninth Circuit looked at it and decided because of your decision on the Romer case, this Court's decision on the Romer case, that it could be decided on the narrower issue, but it certainly was an appropriate case to grant. And those issues that I've been describing are certainly fundamental to the case. And -- and I don't want to abuse the Court's indulgence, that what I -- you suggested that this is uncharted waters. It was uncharted waters when this Court, in 1967, in the Loving decision said that interracial -- prohibitions on interracial marriages, which still existed in 16 States, were unconstitutional.
JUSTICE KENNEDY: It was hundreds of years old in the common law countries. This was new to the United States.
MR. OLSON: And -- and what we have here -
JUSTICE KENNEDY: So -- so that's not accurate.
MR. OLSON: I -- I respectfully submit that we've under -- we've learned to understand more about sexual orientation and what it means to individuals. I guess the -- the language that Justice Ginsburg used at the closing of the VMI case is an important thing, it resonates with me, "A prime part of the history of our Constitution is the story of the extension of constitutional rights to people once ignored or excluded."
CHIEF JUSTICE ROBERTS: Thank you, counsel. General Verrilli?
RAL ARGUMENT OF DONALD B. VERRILLI, JR.,
FOR UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE RESPONDENTS
GENERAL VERRILLI: Mr. Chief Justice, and may it please the Court: Proposition 8 denies gay and lesbian persons the equal protection of the laws -
CHIEF JUSTICE ROBERTS: You don't think you're going to get away with not starting with the jurisdictional question, do you?
JUSTICE ALITO: Well, tomorrow you're going to be making a standing argument that some parties think is rather tenuous, but today, you're -- you're very strong for Article III standing?
GENERAL VERRILLI: Well, we said this was a -- we said this was a close question, and -- and our interests are, Justice Alito, in tomorrow's issues where we have briefed the matter thoroughly and will be prepared to discuss it with the Court tomorrow.
With respect to the merits, two fundamental points lead to the conclusion that there's an equal protection violation here. First, every warning flag that warrants exacting scrutiny is present in this case.
And Petitioners' defense of Proposition 8 requires the Court to ignore those warning flags and instead apply highly deferential Lee Optical rational basis review as though Proposition 8 were on a par with the law of treating opticians less favorably than optometrists, when it really is the polar opposite of such a law.
JUSTICE GINSBURG: General Verrilli, I could understand your argument if you were talking about the entire United States, but you -- your brief says it's only eight or nine States, the States that permit civil unions, and that's -- brings up a question that was asked before. So a State that has made considerable progress has to go all the way, but at least the Government's position is, if it has done -- the State has done absolutely nothing at all, then it's -- it can do -- do as it will.
GENERAL VERRILLI: That gets to my second point, Your Honor, which is that I do think the problem here with the arguments that Petitioners are advancing is that California's own laws do cut the legs out from under all of the justifications that Petitioners have offered in defense of Proposition 8, and I understand Your Honor's point and the point that Justice Kennedy raised earlier, but I do think this Court's equal protection jurisprudence requires the Court to evaluate the interests that the State puts forward, not in a vacuum, but in the context of the actual substance of California law.
And here, with respect to California law, gay and lesbian couples do have the legal rights and benefits of marriage, full equality and adoption, full access to assistive reproduction, and therefore, the argument about the State's interests that -- that Petitioners advance have to be tested against that reality, and -- and they just don't measure up. None of the -
JUSTICE BREYER: Well, the argument -
JUSTICE ALITO: None of the -
CHIEF JUSTICE ROBERTS: Justice Breyer.
JUSTICE BREYER: What is the one -- look, a State that does nothing for gay couples hurts them much more than a State that does something. And, of course, it's true that it does hurt their argument that they do quite a lot, but which are their good arguments, in your opinion? I mean, take a State that really does nothing whatsoever.
They have no benefits, no nothing, no nothing. Okay? And moreover, if -- if you're right, even in California, if they have -- if they're right or, you know, if a pact is enough, they won't get Federal benefits, those that are tied to marriage, because they're not married. So -- so a State that does nothing hurts them much more, and yet your brief seems to say it's more likely to be justified under the Constitution.
I'd like to know with some specificity how that could be.
GENERAL VERRILLI: Well, because you have to measure the -- under the standard of equal protection scrutiny that we think this Court's cases require.
JUSTICE BREYER: I know the principle, but I'm saying which are their good arguments, in your opinion, that would be good enough to overcome for the State that does nothing, but not good enough to overcome California where they do a lot?
GENERAL VERRILLI: Well, we -- what we're - what we're saying about that is that we're not prepared to close the door to an argument in another State where the State's interests haven't cut the legs out from
under the arguments. And I think -- I suppose the caution rationale that Mr. Cooper identified with respect to the effects on children, if it came up in a different case with a different record, after all here, this case was litigated by Petitioners on the theory that rational basis applied and they didn't need to show anything, and so they didn't try to show anything.
Our view is that heightened scrutiny should apply, and so I don't want to -- I don't want to kid about this, we understand, that would be a very heavy burden for a State to meet. All we're suggesting is that in a situation in which the -- the State interests aren't cut out from under it, as they -- as they are here, that that issue ought to remain open for a future case. And I -- and I think the caution rationale would be the one place where we might leave it open. Because you can't leave it open in this case.
JUSTICE SOTOMAYOR: General, there is an irony in that, which is the States that do more have less rights.
GENERAL VERRILLI: Well -- well, I understand that, Your Honor, but I do think that you have to think about the claim of right on the other side of the equation here. And in this situation, California -- the argument here that -- that gay and lesbian couples can be denied access to marriage on the ground of an interest in responsible procreation and child rearing just can't stand up given that the parents have full equality, the gay and lesbian parents have full equality apart from -
JUSTICE ALITO: You want us to assess the effects of same-sex marriage, the potential effects on -- of same-sex marriage, the potential -- the effects of Proposition 8. But what is your response to the argument which has already been mentioned about the need to be cautious in light of the newness of the -- the concept of -- of same-sex marriage. The one thing that the parties in this case seem to agree on is that marriage is very important. It's thought to be a fundamental building block of society and its preservation essential for the preservation of society. Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn't a lot of data about its effect. And it may turn out to be a -- a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe.
But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? I mean we -- we are not -- we do not have the ability to see the future.
On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?
GENERAL VERRILLI: I have four points I would like to make to that in response to that, Justice Alito, and I think they are all important. First, California did not through Proposition 8 do what my friend Mr. Cooper said and push a pause button. They pushed a delete button. This is a permanent ban. It's in the Constitution. It's supposed to take this issue out from the legislative process. So that's the first point. Second -
JUSTICE ALITO: Well, just in response to that, of course the Constitution could be amended, and -- and I think I read that the California Constitution has been amended 500 times.
GENERAL VERRILLI: But the -
JUSTICE ALITO: So it's not exactly like the U.S. Constitution.
GENERAL VERRILLI: But it does -- of course not. But it is--but the aim of this is to take it out of the normal legislative process. The second point is that, with respect to the concerns that Your Honor has raised, California has been anything but cautious. It has given equal parenting rights, equal adoption rights. Those rights are on the books in California now, and so the interest of California is -- that Petitioners are articulating with respect to Proposition 8, has to be measured in that light.
JUSTICE SCALIA: Yeah, but the rest of the country has been cautious.
GENERAL VERRILLI: And -- and that's why -
JUSTICE SCALIA: And we're -- and you are asking us to impose this on the whole country, not just California.
GENERAL VERRILLI: No, respectfully Justice Scalia, we are not. Our position is narrower than that. Our position -- the position we have taken, is about States, it applies to States that have, like California and perhaps other States, that have granted these rights short of marriage, but -
CHIEF JUSTICE ROBERTS: I don't want to -- I want you to get back to Justice Alito's other points, but is it the position of the United States that same-sex marriage is not required throughout the country?
GENERAL VERRILLI: We are not -- we are not taking the position that it is required throughout the country. We think that that ought to be left open for a future adjudication in other States that don't have the situation California has.
JUSTICE SCALIA: So your -- your position is only if a State allows civil unions does it become unconstitutional to forbid same-sex marriage, right?
GENERAL VERRILLI: I -- I see my red light is on.
CHIEF JUSTICE ROBERTS: Well, you can go on.
GENERAL VERRILLI: Thank you. Our position is -- I would just take out a red pen and take the word "only" out of that sentence. When that is true, then the Equal Protection Clause forbids the exclusion of same-sex marriage, and it's an open question otherwise.
And if I could just get to the third reason, which I do think is quite significant. The argument here about caution is an argument that, well, we need to wait. We understand that. We take it seriously. But waiting is not a neutral act. Waiting imposes real costs in the here and now. It denies to the -- to the parents who want to marry the ability to marry, and it denies to the children, ironically, the very thing that Petitioners focus on is at the heart of the marriage relationship.
CHIEF JUSTICE ROBERTS: But you are willing to wait in the rest of the country. You saying it's got to happen right now in California, but you don't even have a position about whether it's required in the rest of the country.
GENERAL VERRILLI: If -- with respect to a State that allows gay couples to have children and to have families and then denies the stabilizing effect -
CHIEF JUSTICE ROBERTS: So it's got to happen right away in those States where same-sex couples have every legal right that married couples do.
GENERAL VERRILLI: Well, we think -
CHIEF JUSTICE ROBERTS: But you can wait in States where they have fewer legal rights.
GENERAL VERRILLI: What I said is it's an open question with respect to those States and the Court should wait and see what kind of a record a State could make. But in California you can't make the record to justify the exclusion. And the fourth point I would make on this, recognizing that these situations are not -
JUSTICE SOTOMAYOR: How would the record be different elsewhere?
GENERAL VERRILLI: Well, they might try to make a different record about the effects on children.
But there isn't a record to that effect here. And the fourth point I would make, and I do think this is significant, is that the principal argument in 1967 with respect to Loving and that the Commonwealth of Virginia advanced was: Well, the social science is still uncertain about how biracial children will fare in this world, and so you ought to apply rational basis scrutiny and wait. And I think the Court recognized that there is a cost to waiting and that that has got to be part of the equal protection calculus. And so -- so I do think that's quite fundamental.
CHIEF JUSTICE ROBERTS: Can I ask you a problem about -
GENERAL VERRILLI: Sure.
CHIEF JUSTICE ROBERTS: -- I -- it seems to me that your position that you are supporting is somewhat internally inconsistent. We see the argument made that there is no problem with extending marriage to same-sex couples because children raised by same-sex couples are doing just fine and there is no evidence that they are being harmed. And the other argument is Proposition 8 harms children by not allowing same-sex couples to marriage. Which is it?
GENERAL VERRILLI: Well, I -- I think what Proposition 8 does is deny the long-term stabilizing effect that marriage brings. That's -- that's the argument for -- for marriage, that -
CHIEF JUSTICE ROBERTS: But you also tell me there has been no harm shown to children of same-sex couples.
GENERAL VERRILLI: California -- there are 37,000 children in same-sex families in California now. Their parents cannot marry and that has effects on them in the here and now. A stabilizing effect is not there. When they go to school, they have to, you know -- they don't have parents like everybody else's parents. That's a real effect, a real cost in the here and now.