Divided Court Confronts Gay Marriage

People for and against gay marriage demonstrate Tuesday outside the Supreme Court, where justices are hearing two cases on same-sex marriage. (AP)

A divided Supreme Court waded into the nationwide debate over gay marriage Tuesday, considering the constitutionality of California’s Proposition 8 that bans same-sex unions, and weighing society’s interest in restricting marriage to only one man and one woman.

Dispensing with some of the more complex legal questions surrounding the case, the justices and attorneys quickly moved into a discussion about whether the government could constitutionally exclude certain couples from marriage and whether laws that do so protect society, the institution of marriage and even children.

Eight of the justices seemed divided along ideological lines, with the four liberals questioning laws that ban same-sex marriage and three of the conservatives appearing to support. Conservative Justice Clarence Thomas remained silent.

Justice Anthony Kennedy, who is seen as a crucial swing vote in the case, seemed to doubt the government’s justification for excluding gay couples from marriage. At the same time, he voiced worry about going too far in establishing a nationwide right to gay marriage, saying at one point the court was heading into “uncharted waters.”

Attorney Charles Cooper, arguing in support of Proposition 8, looked to put the question before the justices in context, pointing to established nationwide tradition of marriage comprising a union between one man and one woman.

He cited past Supreme Court precedents, including Baker v. Nelson from 1971 that’s seen as the first decision by the court upholding limits on gay marriage. That understanding is changing, Cooper conceded, pointing to an “ongoing debate” around the country on same-sex marriage. Still, he said that understanding should not simply be cast aside.

“The question before this Court,” Cooper said, “is whether the Constitution puts a stop to that ongoing democratic debate and answers this question for all 50 states.”

Tuesday marked the first of two days of arguments on same-sex marriage. Wednesday the court will hear a challenge to the federal Defense of Marriage Act, or DOMA, as it is known. The law bars the federal government from recognizing same-sex marriages even if they're allowed in a state. 

In Tuesday's arguments, Justice Ruth Bader Ginsburg set the tone early for the discussion over the definition of marriage, pointing out how much had changed in the four decades since Baker v. Nelson, and how quickly that debate has moved across the country.

In 1971, she said, "The Supreme Court hadn't even decided that gender-based classifications get any kind of heightened scrutiny...Same-sex intimate conduct was considered criminal in many states in 1971. So I don't think we can extract much in Baker v. Nelson."

From that point, the court’s more liberal members pushed Cooper to justify why the government should be allowed to treat gay couples differently than straight ones. Justice Sonia Sotomayor asked whether there was “any other rational decision a government could make” to discriminate against gay people, whether in employment, government benefits or anything else.

Cooper admitted there wasn’t, but cited procreation as one reason for limiting marriage to heterosexual couples. That drew a quick response from justices Elena Kagan, who asked whether people older than 55 should be allowed to marry, and Stephen Breyer.

"There are lots of people who get married who can't have children,” Breyer said. “Couples that aren't gay but can't have children get married all the time."

Kennedy asked whether Cooper was conceding there was no immediate negative outcome from allowing same-sex marriages.

Cooper said it was too early to tell, and Justice Antonin Scalia picked up that point of view, pointing to conflicting evidence about the effect on children of being raised by same-sex couples.

“There's considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not,” he said.

Kennedy moved the discussion from the hypothetical to the situation in California, where an estimated 40,000 children are already living with same-sex couples.

“There is an immediate legal injury or what could be a legal injury, and that's the voice of these children,” Kennedy said. “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?”

When the discussion turned to Theodore Olson, arguing against Proposition 8, he offered a full-throated denunciation of the ban.

“It walls off gays and lesbians from marriage, the most important relation in life, according to this court,” he said, “thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal, and not OK.”

Chief Justice John Roberts looked to reframe the question, saying that perhaps marriage should be understood as an inherently heterosexual institution that some are now looking to expand.

“I’m not sure it’s right to view this as excluding a particular group,” Roberts said. “You don’t have to include everybody.”

Scalia went further, pressing the long-standing notion that marriage was a union between a man and woman, and therefore there was nothing wrong with excluding gay people.

“When did it become unconstitutional to exclude homosexuals from marriage?” he asked. “When did the law become this?”

Olson replied that society has increasingly come to accept homosexuality over the years and that marriage had become a fundamental right for all people.

Solicitor General Donald Verrilli, last to address the court, offered the United States’ strong denunciation of Proposition 8.

“Proposition 8 denies gay and lesbians equal protection under the law,” he said, saying that the defense of the law asks the justices to ignore several “warning flags” of potential discrimination.

The more conservative justices pressed Verrilli on whether he, and by extension the U.S. government, was arguing for a nationwide right to same-sex marriage.

“You want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet?” Justice Samuel Alito asked. “On an issue like that, why should it not be left to the people?”

Scalia, too, asked whether Verrilli was advocating such a far-reaching outcome. “The rest of the country has been cautious, and you’re asking us to impose this on the rest of the country.”

In response, Verrilli stopped short of advocating a nationwide right to same-sex marriage, saying “we’re not prepared to close the door” on arguments in favor of such bans from other states.

Ultimately, the court could rule in a variety of ways that could mean a historic victory for either supporters or opponents of same-sex marriage. Or the court could strike a tempered result, maintaining the current patchwork of marriage laws found today. The state of that patchwork: 34 states ban same-sex marriage. Six allow civil unions along with the nine plus the district that offer full marriage. Four other states offer neither same-sex marriage nor civil unions but allow some level of domestic partnerships.

The split among the states was apparent in filings made by more than half of the country’s attorneys general ahead of the arguments. On California’s ban, 20 states have argued the law should stand, while 13 plus DC and the state of California argue it should not. Meanwhile, 17 states filed a brief supporting DOMA. Fifteen plus the district filed a brief arguing against it.

Each case offers a slate of potential outcomes that could affect citizens, individual states and the country as a whole in myriad ways.

With Proposition 8, for example, the court could simply uphold a lower court’s ruling that nullified the law. Such a decision would allow same-sex marriages in California, but likely wouldn’t affect bans elsewhere. Or, the court could find Proposition 8 broadly unconstitutional, presumably declaring similar bans elsewhere unconstitutional as well.

The court could also overturn the lower court’s ruling, reaffirming the right of California and its voters – and likely every other state – to enact a ban on same-sex marriage. That outcome would be a significant victory for proponents of the bans in the states that have them.

On DOMA, the outcome is potentially equally significant for the states and the country as a whole.

Proponents of same-sex marriage argue that the federal law is unconstitutional because it discriminates against couples legally married under a given state’s law. They point to a long history of state-based marriage laws, saying states should have the power to determine who can marry – and that the federal government should recognize those legally performed unions.

For the opponents, though, the DOMA case represents a potential undermining of their marriage laws. Many state bans also block the state from recognizing marriages performed elsewhere. Supporters say if the federal government recognizes same-sex marriages it will be a matter of time before they’ll be forced to recognize such unions performed elsewhere. Such a ruling, they say, could mean the beginning of a slow end for same-sex marriage bans around the country.

Or, as in the Proposition 8 question, the court could uphold DOMA and refuse to declare laws that treat same-sex and heterosexual couples differently unconstitutional. That, too, would be a significant victory for opponents of same-sex marriage.

The court is expected to issue its rulings by the end of its term in June.


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