A cautious and conflicted Supreme Court on Tuesday took up for the first time a detailed examination of same sex marriage, and justices wondered openly about whether it was time for the court to render a judgment. Justice Anthony M. Kennedy, considered to be the pivotal vote on the issue, said the court was in “uncharted waters.” He questioned whether it should have accepted the case, which concerns California’s constitutional amendment, approved by voters, that restricts marriage to heterosexual couples. An appeals court struck down the measure, therefore a decision by the Supreme Court not to weigh in would most likely lead to the resumption of same sex marriages in California. Such marriages were authorized by the California Supreme Court before voters passed Proposition 8 in 2008. The court’s liberals sharply questioned Washington lawyer Charles J. Cooper, who represented proponents of Prop 8 and said that procreation and responsible child rearing were rational reasons for government to limit marriage to heterosexual couples. He was challenged by Justice Elena Kagan, who said those reasons might be grounds for valuing marriage among heterosexual couples but were not a basis for excluding same sex couples. She and others noted that the law allows older or sterile heterosexual couples to marry. Justice Antonin Scalia challenged lawyer Theodore B. Olson, who was arguing to overturn Prop 8 and have the court rule that there is a constitutional right to marriage that must include same sex couples. Scalia and other conservatives wondered how the Constitution could mandate a position on same sex marriage, which, as Justice Samuel A. Alito Jr. noted, did not exist before the year 2000. “When did it become unconstitutional to prohibit gays from marrying?” Scalia asked. Olson said he could not answer the question precisely, but pointed repeatedly to the court’s decision in 1967 that wiped away state laws prohibiting interracial marriage. Kennedy seemed to argue both sides of the case, challenging Cooper’s contention that the interests of society are paramount. Kennedy said there are “40,000 children in California that live with same-sex parents,” and have an interest in their parents’ receiving full marital status. “The voice of those children is important,” he said. But he often returned to the issue of whether the case was properly before the court — California state officials refuse to defend the law and that left the job to proponents of Prop 8. He also questioned whether the issue had come before the court too swiftly, before it is fully known, for instance, how children in same-sex households fare. “We have five years of information to pose against 2,000 years of history,” he said. Notes of caution also came from Justice Samuel A. Alito Jr. and to some extent from Justice Sonia Sotomayor. Alito said the court might not be prepared to assess the effects of something “newer than cellphones and/or the Internet.” The case poses various options for the court. Cooper was asking the justices to simply agree that the democratic process was the way to settle the question and let California’s amendment stand unless voters wanted to change it. Olson was asking the court to uphold the lower court decision striking it down, but also to decide a broader question that would apply nationally.
The Obama administration took something of a middle-ground, saying those states that offer such accommodations as civil unions and equality in adoptions cannot withhold the official distinction of marriage. That is the case in a handful of states. The justices did not seem moved by the administration’s argument, and their questions about the newness of same sex marriage might signal a reluctance to say states have no say in whether to approve such unions. The historic oral arguments followed a four-year legal battle to extend the right of marriage to same sex. Such a battle at the Supreme Court would have been difficult to imagine even a decade ago. The first of two days of oral arguments over what supporters call marriage equality brought the boldest of the claims that gay rights activists will make — that there is a constitutional right to same sex marriage that states may not deny. As the Supreme Court began Tuesday’s session, demonstrators for and against same-sex marriage made their cases outside, where many people began lining up as early as Thursday to get seats for the oral arguments. The case is known as Hollingsworth v. Perry. A San Francisco judge ruled broadly for the two couples who brought the Prop 8 challenge, finding that the equal protection provided by the Constitution required that they — and by extension other same sex couples across the country — be allowed to marry. A panel of the U.S. Court of Appeals for the 9th Circuit ruled for the couples more narrowly. It said that once California had extended the right to marry — about 18,000 same sex couples wed before Prop 8 was approved — it could not be withdrawn. The U.S. Supreme Court’s affirmation of that decision would limit the impact to California. But those are not the only options before the nine justices. They could conclude that the Constitution is silent on the issue and that California voters were within their rights to write into the state constitution a traditional definition of marriage. They could also decide that the issue is not properly before the court. Because California’s political leaders disagree with Prop 8 and have chosen not to defend it, the court will have to decide whether proponents of the measure may be the ones to do so. If not, the state probably will be free to again issue marriage licenses to same sex couples.
On Wednesday, the court will hear a more modest constitutional challenge. It concerns the Defense of Marriage Act, passed by Congress in 1996 to withhold federal recognition of same sex unions performed in states where it is legal. At the time, there were none. But now nine states, including Maryland, plus the District of Columbia have legalized such unions. Lower courts have found the law unconstitutional. They say that withholding federal benefits such as preferential tax breaks, Social Security survivor benefits, medical leave and other awards is discriminatory when both heterosexual and homosexual couples are legally married. The cases put the court at the center of a highly charged and emotional debate with moral, religious and social ramifications. About four-fifths of the states ban same sex marriage. But at the same time, polls show that a growing number of Americans have openly gay friends or relatives and believe homosexuality is not a choice. A greater number of Americans say they believe same sex marriage should be legal than say it should be prohibited, and the sentiment is especially prevalent among the young. But those who support Proposition 8 say that is all the more reason the court should stay out of the issue and allow the democratic process to work. “By reaffirming the traditional definition of marriage, the people of California have not even discouraged, much less criminalized, any private behavior or personal relationship,” Cooper told the court in a brief defending Prop 8. “Rather, California has simply reserved a special form of recognition and support to those relationships that have long been thought to uniquely further vital societal interests.” Among them are responsible procreation and child-rearing, wrote Cooper, who will have 30 minutes before the court to make his case. The challenge to Prop 8 was brought by an unlikely pair of lawyers. Olson, a conservative stalwart, and liberal Democrat David Boies — adversaries before the Supreme Court in Bush v. Gore — teamed up to represent Kristin Perry and Sandra Stier, a lesbian couple from Berkeley, and Jeffrey Zarrillo and Paul Katami, two gay men from Burbank. The Constitution, they tell the court, “simply does not tolerate the permanent exclusion of gay men and lesbians from the most important relation in life.” Olson will argue for the couples and split his time with Solicitor General Donald B. Verrilli Jr. After President Obama declared that his own “evolution” on the issue led him to believe that same sex couples should be allowed to marry, the government weighed in on the side of overturning Prop 8. It does not go as far as Olson advocates. Instead, it says that states such as California, which offers gay couples full rights, must also extend the right of marriage. Such a position, if accepted by the justices, would probably allow same sex marriage in an additional eight states.