• With: Jonathan Last

    This is a rush transcript from "Journal Editorial Report," March 30, 2013. This copy may not be in its final form and may be updated.

    PAUL GIGOT, FOX HOST: This week on the "Journal Editorial Report," the Supreme Court takes up the controversy over same-sex marriage. After two days of oral arguments, are there clues as to how the justices will rule?

    And the Senate after dark. They've gone on spring break, but not before passing a trillion dollars in new taxes and so much more. We'll fill you in on last weekend's late-night budget votes.

    Plus, America's baby bust. Forget terrorism and the national debt. The author of a provocative new book tells us why the nation's falling fertility rate is the biggest threat America faces.

    Welcome to the "Journal Editorial Report." I'm Paul Gigot.

    The Supreme Court wrapped up two days of oral arguments this week on a pair of gay marriage cases, setting the stage for another historic and contentious ruling this June. On Tuesday, the court considered a challenge to Proposition 8, California's voter-approved ban on same-sex marriage, and on Wednesday, moved on to the federal Defense of Marriage Act, known as DOMA, which defines marriage as between one man and one woman, and prevents gay spouses from receiving benefits like Social Security survivor's payments and tax deductions.

    Joining the panel this week, Wall Street Journal columnist and deputy editor, Dan Henninger; editorial board member, Joe Rago, and opinionjournal.com editor, James Taranto.

    So, Joe, are we going to get a Supreme Court saying that gay marriage is a constitutional right that imposes that on 50 states?

    JOE RAGO, EDITORIAL BARD MEMBER: I don't think so. You saw real disquiet across the political spectrum, left to right, with even the liberal justices realizing this would be an especially radical step to say that the marriage arrangements that have prevailed for millennia are unconstitutional and a result of invidious bigotry.

    GIGOT: Let's listen to Sonya Sotomayor on exactly that point.


    SONYA SOTOMAYOR, U.S SUPREME COURT JUSTICE: If you say that marriage is a fundamental right, what state restrictions could ever exist?


    SOTOMAYOR: I mean, what state restrictions with respect to the number of people, with respect to -- that could get married, the incest laws, that mother and child, assuming --


    SOTOMAYOR: -- that they're the age. I can accept that the state has probably an overbearing interest on protecting a child until they're of age to marry, but what's left?


    GIGOT: She's suggesting that it would be difficult for governments to put any limits on marriage --

    RAGO: Right.

    GIGOT: -- if gay marriage is suddenly a constitutional --

    RAGO: Once you kick out the strut, what else is going to fall? We say that marriage is a permanent union. What about if people want to have time-limited marriages, term-limited marriages, sort of get a lease that renews every year? Once you change one definition, you kind of take the power away from the states to define the institution.

    GIGOT: James, how did you see the debate?

    JAMES TARANTO, OPINIONJOURNAL.COM EDITOR: Well, I wouldn't read too much into that question from Justice Sotomayor. I think she asked a pertinent question, but that doesn't necessarily tell us how it's going to vote.

    The more interesting justice is the one who is almost certainly going to be the key here and that is Justice Kennedy. He was very reluctant take up the equal protection argument, the claim that the traditional definition of marriage discriminates against gays.

    GIGOT: Right.

    TARANTO: And so, I think -- the likeliest outcome of the Proposition 8 case is probably that the court will kick it back, saying that the people who are appealing it don't have standing because the state is not defending its law. The effect of that would be that the trial court ruling would stand and California would have same-sex marriage, but it would have no legal precedence and no effect on other states.

    GIGOT: Let's go, move on to the Defense of Marriage Act, which is the federal statute. And Justice Kennedy -- you mentioned Kennedy -- raised a question about that law on federalism grounds, that is, the tension between state and federal power. Let's listen.


    ANTHONY KENNEDY, U.S SUPREME COURT JUSTICE: You are at real risk of running in conflict with what has always been thought to be the essence of the state police power which is to regulate marriage, divorce, custody.


    GIGOT: Dan, is the federal government trying to regulate marriage with DOMA?

    DAN HENNINGER, COLUMNIST & DEPUTY EDITOR: Well, that's the argument that they're trying to define marriage. When that was --

    GIGOT: Is that regulating it at the state level?

    HENNINGER: Well, they're trying -- they regulated it with DOMA because they felt they had all of these 1,100 federal statutes, such as we see in Social Security, which are -- which use marriage as a marriage between man and a woman, and they're trying to keep that intact.

    GIGOT: Right, but they did that at the federal level. They didn't force that on the states.

    HENNINGER: They didn't force that on the states, but the states then have to decide, you know, just what -- make up their own mind what marriage is going to be. And I think this conversation and what the courts argue, makes it cheer that this case came upon the Supreme Court so quickly, the idea that same-sex marriage has gained acceptance in society, that they're saying that we are very uncomfortable with the making of a decision that the Supreme Court should enshrine same-sex marriage in the Constitution.

    GIGOT: Right.

    HENNINGER: This has not been litigated and only nine states legalized it.

    GIGOT: Right.