Justice Anthony Kennedy on Tuesday called the prospect of gay unions “uncharted waters” during hearing of oral arguments considering Proposition 8, California’s gay marriage ban.
“And you can play with that metaphor,” the justice said, continuing that in that consideration, “There’s a wonderful destination” or “a cliff.”
Prop 8 was passed in November 2008 after the referendum and it bans gay marriage, reversing by popular vote the state Supreme Court’s decision just months earlier to recognize marriage equality, reports The Huffington Post.
The judge seemed higly interested in that “wonderful destination” and mortified by the prospect that there still might be a cliff. He admitted that though the social science on same-sex unions is relatively new, there is an “immediate” legal harm to those gay couples who cannot be married.
“They want their parents to have full recognition and legal status,” Kennedy told Charles J. Cooper, who is representing supporters of Prop 8’s ban on gay marriage. “The voice of those children is considerable in this case, don’t you think?”
Kennedy also expressed his doubts that Prop 8, and gay marriage bans in general, present “no harm of denigration” against gays and lesbians.
After hearing arguments, justices quizzed Theodore Olson, the lawyer who represented the anti-Prop 8 case, on whether same-sex marriage could cause any harm, with the lawyer arguing that same-sex marriages are too new to know for sure.
“I think it better for California to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing,” Cooper replied, speaking for a hypothetical California voter.
Justice Antonin Scalia then stepped in to offer a concrete possibility for harm: “I don’t know why you don’t mention some concrete things.”
“If you redefine marriage to include same-sex couples, you must — you must permit adoption by same-sex couples, andthere’s - there’s considerable disagreement among – among sociologists as to what the consequences of raising a child in a — in a single-sex family, whether that is harmful to the child or not.”
According to Live Science, there’re speculations regarding needs of children and the importance of procreation to the state’s interest in marriage.
In one exchange, Justice Elena Kagan asked whether it would be constitutional to prevent couples over the age of 55 from marrying, given that they would not be procreating.
“Your Honor, even with respect to couples over the age of 55, it is very rare that both couples, both parties to the couple are infertile, and the traditional -” Cooper said.
“I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage,” Kagan shot back.
The advocate for gay unions, Theodore Olson, later noted: “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.”