WASHINGTON: The 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 court’s first major examination of gay rights in 10 years continues today, when the justices will consider the federal law that prevents legally married gay couples from receiving a range of benefits afforded straight married people.
The issue before the court on Tuesday 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.
There is no questioning the emotions the issue stirs. Demonstrators on both sides crowded the grounds outside the court, waving signs, sometimes chanting their feelings.
Inside, a 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.
Indeed, 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 have no impact elsewhere.
There was no majority apparent for any particular outcome, and many doubts were expressed by justices about the arguments advanced by lawyers for the opponents of gay marriage in California, by the supporters and by the Obama administration, which is in favor of same-sex marriage rights. The administration’s entry into the case followed President Barack Obama’s declaration of support for gay marriage.
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 an expression of the people’s will and let political debate continue.
But Kennedy pressed him 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.
Yet when Theodore Olson, the lawyer for two same-sex couples, urged the court to support such marriage rights everywhere, Kennedy feared such a ruling would push the court into “uncharted waters.” Olson said that the court similarly ventured into the unknown in 1967 when it struck down bans on interracial marriage in 16 states.
Kennedy challenged the accuracy of that comment, noting that other countries had had interracial marriages for hundreds of years.
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.
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 today. 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 the 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.