The U.S. Supreme Court dove into a historic debate on gay rights Tuesday that could soon lead to resumption
of same-sex marriage in California, but the justices signaled they may not be ready for a major national ruling on whether America’s gays and lesbians have a right to marry.
The issue before the court was more fundamental: Does the Constitution require that people be allowed to marry whom they choose, regardless of either partner’s gender? The fact that the question was in front of the Supreme Court at all was startling, given that no state recognized same-sex unions before 2003 and 40 states still don’t allow them.
Skeptical Justice Samuel Alito cautioned against a broad ruling in favor of gay marriage precisely because the issue is so new.
“You want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cellphones or the Internet? I mean, we do not have the ability to see the future,” Alito said.
It was clear from the start of the 80-minute argument in a packed courtroom, that the justices, including some liberals who seemed open to gay marriage, had doubts about whether they should even be hearing the challenge to California’s Proposition 8, the state’s voter-approved gay marriage ban.
Justice Anthony Kennedy, the potentially decisive vote on a closely divided court, suggested the justices could dismiss the case with no ruling at all.
Such an outcome would almost certainly allow gay marriages to resume in California but would have no impact elsewhere.
On the one hand, Kennedy acknowledged the recentness of same-sex unions, a point stressed repeatedly by Charles Cooper, the lawyer for the defenders of Proposition 8. Cooper said the court should uphold the ban as a valid expression of the people’s will and let the vigorous political debate over gay marriage continue.
But Kennedy pressed him also to address the interests of the estimated 40,000 children in California who have same-sex parents.
“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?” Kennedy said.
Kennedy noted that other countries had had interracial marriages for hundreds of years.
The justice, whose vote usually decides the closest cases, also made clear he did not like the rationale of the federal appeals court that struck down Proposition 8 (as the California Supreme Court did), even though it cited earlier opinions in favor of gay rights that Kennedy had written.
That appeals court ruling applied only to California, where same-sex couples briefly had the right to marry before the state’s voters in November 2008 adopted Proposition 8, a constitutional amendment that defined marriage as the union of a man and a woman.
Several members of the court also were troubled by the Obama administration’s main contention that when states offer same-sex couples civil union rights of marriage, as California and eight other states do, they also must allow marriage. The other states are: Colorado, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island.
“So a state that has made considerable progress has to go all the way, but at least the government’s position is, if the state has done absolutely nothing at all, then it can do as it will,” Justice Ruth Bader Ginsburg said.
U.S. Chief Justice John Roberts questioned whether gay marriage proponents were arguing over a mere label. “Same-sex couples have every other right. It’s just about the label,” Roberts said.
In the California case, if the court wants to find an exit without making a decision about gay marriage, it has two basic options.
It could rule that the opponents have no right, or legal standing, to defend Proposition 8 in court. Such an outcome also would leave in place the trial court decision in favor of the two same-sex couples who sued for the right to marry. On a practical level, California officials probably would order county clerks across the state to begin issuing marriage licenses to gay and lesbian couples, although some more conservative counties might object.
Alternatively, the justices could determine that they should not have agreed to hear the case in the first place, as happens a couple of times a term on average. In that situation, the court issues a one-sentence order dismissing the case “as improvidently granted.” The effect of that would be to leave in place the appeals court ruling, which in the case of Proposition 8, applies only to California. The appeals court also voted to strike down the ban, but on somewhat different grounds than the trial court.
Reflecting the high interest in this week’s cases, the court released an audio recording of Tuesday’s argument shortly after it concluded and plans to the do same Wednesday. Tuesday’s audio can be found at: http://tinyurl.com/dxefy2a. The last time the court provided same-day audio recordings was during its consideration of Obama’s health care law.
Both sides of marriage question were well represented outside the courthouse. Supporters of gay marriage came with homemade signs including ones that read “a more perfect union” and “love is love.”
Among the opponents was retired metal worker Mike Krzywonos, 57, of Pawtucket, R.I. He wore a button that read “marriage 1 man + 1 woman” and said his group represents the “silent majority.”
Same-sex marriage is legal in nine states and the District of Columbia. The states are Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington.
Thirty states ban same-sex marriage in their constitutions, while ten states bar them under state laws. New Mexico law is silent on the issue.
Polls have shown increasing support in the country for gay marriage. According to a Pew Research Center poll conducted in mid-March, 49 percent of Americans now favor allowing gays and lesbians to marry legally, with 44 percent opposed.
At another point, Justice Antonin Scalia, who has dissented in the court’s previous gay rights cases, invoked the well-being of children to bolster Cooper’s case.
The California couples, Kris Perry and Sandy Stier of Berkeley and Paul Katami and Jeff Zarrillo of Burbank, filed their federal lawsuit in May 2009 to overturn the same-sex marriage ban that voters approved the previous November. The ballot measure halted same-sex unions in California, which began in June 2008 after a ruling from the California Supreme Court that Prop 8 was unconstitutional.
Roughly 18,000 couples were wed in the nearly five months that same-sex marriage was legal and those marriages remain valid in California and upheld by the California Supreme Court.
Marriage Equality Kentucky and Kentucky Equality Federation – possible U.S. Supreme Court rulings on gay marriage. U.S. Chief Justice John Roberts questioned whether gay marriage proponents were arguing over a mere label. Same-sex couples have every other right. It’s just about the label, Roberts said.