Justice Kennedy: “The voice of those children is important in this case, don’t you think?”

Red "Equals" Sign (=), Signaling Support for Marriage EqualityThe importance of children to the debate over marriage equality was evident at the Supreme Court today, as the Justices struggled over a range of issues implicated by the constitutional challenge to Proposition 8. Proposition 8 banned same-sex marriage in California.

Justice Kennedy, often viewed as the “swing” vote in this case, has already been quoted widely for a question he posed to Charles Cooper, the attorney defending Proposition 8 before the Court.

Justice Kennedy stated:

[T]here is an immediate legal injury or legal — what could be a legal injury, and that’s the voice of these children. There are some 40,000 children in California . . . that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?

Mr. Cooper agreed that the children’s voice was important, but he essentially argued that their voice should be heard in the political process, not in a lawsuit. (Mr. Cooper takes the position that the debate over same-sex marriage should be allowed to unfold in the political arena without judicial intervention.) Mr. Cooper also claimed that there “is no data” on the issue of whether denying marriage rights to same-sex couples in California harms the couples’ children. He stated:

Your Honor, I certainly would not dispute the importance of that consideration. That consideration especially in the political process, where this issue is being debated and will continue to be debated, certainly, in California. It’s being debated elsewhere. But on that — on that specific question, Your Honor, there simply is no data. In fact, their expert agreed there is no data, no study, even, that would examine whether or not there is any incremental beneficial effect from marriage over and above the domestic partnership laws that were enacted by the State of California to recognize, support, and honor same-sex relationships and their families. There is simply no data at all that would permit one to draw — draw that conclusion.

Justice Kennedy’s question about the children of same-sex couples suggests some sympathy for those challenging Proposition 8. But that does not mean he will vote to invalidate the provision: Several of his other statements and questions at today’s oral argument suggest that he is struggling a fair amount with the case, and may even regret that the Court agreed to hear it.

The transcript of today’s oral argument is here, and the audio recording is here.

For a blog post about the American Academy of Pediatrics’ recent endorsement of marriage equality, click here.

For additional coverage, see

• Justices Hint at Fears of Acting Too Quickly on Gay Marriage (The New York Times);

Supreme Court justices conflicted on gay marriage case (The Washington Post); and

Supreme Court appears split on Prop. 8, broad gay marriage ruling (The Los Angeles Times).

For more in-depth legal analysis, I recommend www.SCOTUSblog.com, which has new posts about the case here, here, and here.

Tomorrow, the Supreme Court takes up the constitutional challenge to the federal Defense of Marriage Act.

MK

P.S. A somewhat-unrelated note about today’s argument: Justice Kennedy also raised the question of whether the ban on same-sex marriage classifies, or discriminates, based on gender, as opposed to (or in addition to) classifying or discriminating based on sexual orientation. (See page 13 of the transcript.) Most participants in the litigation have ignored this question. I commented on this issue in more depth in a recent essay, Slighting the Sex-Discrimination Claim in Hollingsworth v. Perry, published in the New York University Review of Law & Social Change.