But then he was asked pointedly if California gay couples — who already have all the rights and responsibilities in marriage in domestic partnerships — are just after the “label” of marriage.
Since they have every other right, “all you’re interested in is the label and you insist on changing the definition of the label. It’s just about the label,” Chief Justice John G. Roberts Jr. said.
Mr. Olson countered by saying that “there are certain labels in this country that are very, very critical,” and marriage has “a status.”
Chief Justice Roberts agreed, but added that “maybe it is the procreative aspect that makes it a fundamental right.”
Even the brief history of gay marriage was delved into, with Associate Justice Samuel Anthony Alito Jr. noting that such nuptials are “newer than cellphones or the Internet,” while Associate Justice Antonin Scalia repeatedly asked Mr. Olson about exactly “when” it become unconstitutional to prohibit gays from marriage.
“We don’t prescribe law for the future. We decide what the law is,” said Justice Scalia. “I’m curious — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the 14th Amendment was adopted?”
Mr. Olson tried to answer rhetorically, saying the same could be asked of school segregation and interracial-marriage bans. “Don’t give me a question to my question,” Justice Scalia replied, but even as the audience laughed, the justice pressed again on, asking again, “when” did the Constitution change on marriage?
“There’s no specific date in time,” Mr. Olson finally responded. “This is an evolutionary cycle.”
“Well, how am I supposed to know how to decide a case … if you can’t give me a date when the Constitution changes?” Justice Scalia said.
After the court session ended, many media pundits concluded that Proposition 8 has no chance of being upheld, and the only questions are how the court would strike it down.
If the court dismisses the case with no ruling at all, it is widely believed that an outcome would almost certainly allow gay marriages to resume in California.
The session, which ran about 80 minutes long, riveted the 400 people in the courtroom, which included actor-director Rob Reiner, who opposes Proposition 8; and leading gay-rights lawyers including Mary L. Bonauto of the Gay and Lesbian Advocates and Defenders, and Evan Wolfson, leader of Freedom to Marry.
Andrew Pugno, general counsel of ProtectMarriage.com, which petitioned the court with Dennis Hollingsworth and others, to hear its case to uphold Proposition 8, said he thought the hearing went “very well” and that Mr. Cooper spoke clearly on their behalf.
“We have every confidence that the nine justices will resist the political pressure to prematurely end the national debate about the definition of marriage,” he said, adding that gay marriage is “a social experiment that needs no special protection by or recognition from the U.S. Supreme Court.”
President Obama, who personally supports same-sex marriage, received updates at the White House on Tuesday about the oral arguments, and senior adviser Valerie Jarrett and White House counsel Kathryn Ruemmler were among the White House officials who attended the oral arguments.