Supreme Court may not want gay marriage question
By ADAM LIPTAK
The New York Times | March 27,2013
Demonstrators march Tuesday outside the U.S. Supreme Court, where justices were hearing arguments on California’s voter approved ban on same-sex marriage.
WASHINGTON — As the U.S. Supreme Court on Tuesday weighed the very meaning of marriage, several justices seemed to have developed a case of buyer’s remorse about the case before them.
Some wondered aloud if the court had moved too fast to address whether gay and lesbian couples have a constitutional right to marry.
“I just wonder if this case was properly granted,” said Justice Anthony M. Kennedy, who probably holds the decisive vote.
Justice Sonia Sotomayor said there may be value in letting states continue to experiment. “Why is taking a case now the answer?” she asked.
Addressing the merits of the case during the first of two days of arguments on same-sex marriage, Kennedy voiced sympathy for the children of gay and lesbian couples.
“There’s some 40,000 children in California that live with same-sex parents,” he said, as the justices debated the state’s Proposition 8, which banned same-sex marriage. “They want their parents to have full recognition and full status. The voice of those children is important.”
But Kennedy also spoke of uncertainty about the consequences for society of allowing same-sex marriage. “We have five years of information to pose against 2,000 years of history or more,” he said, speaking of the long history of traditional marriage and the brief experience allowing gay men and lesbians to marry in some states.
Justice Samuel A. Alito Jr. said the court should not move too fast.
“You want us to step in and assess the effects of this institution, which is newer than cellphones and/or the Internet?” he said.
Many of the questions directed to Charles J. Cooper, a lawyer for opponents of same-sex marriage, concerned whether there was any good reason to exclude same-sex couples from the institution.
Justice Elena Kagan, for instance, asked how letting gay and lesbian couples marry harmed traditional marriages. “How does this cause and effect work?” she asked.
Cooper said that “the state’s interest and society’s interest in what we have framed as `responsible procreation’ is vital.”
Theodore B. Olson, representing the ban’s challengers, said California’s ban on same-sex marriage “walls off gays and lesbians from marriage, the most important relationship in life.”
Several justices also challenged the notion that procreation was the key to the state’s interest in marriage. Justice Stephen G. Breyer asked Cooper about sterile opposite-sex couples.
“There are lots of people who get married who can’t have children,” he said.
Cooper avoided a direct attack on same-sex marriage, which has rapidly gained public support in recent years. Instead, he argued that there was already under way a lively, democratic debate over “the age-old definition of marriage” and suggested that the court should not interrupt it.
The court should not, he said, “put a stop to this democratic debate” over what he called “an agonizingly difficult issue.”
There was also an extended discussion of a preliminary issue: whether the plaintiffs in the case actually have legal standing to challenge the state court ruling that overturned Proposition 8, the ballot initiative banning same-sex marriage.
Seconds into the morning hearing, as Cooper began his argument, Chief Justice John G. Roberts Jr. cut him off and asked him to address the standing issue. It could prove a crucial question, since the court could decide that they have no standing and effectively leave in place a state ruling striking down the same-sex marriage ban.
Olson said that the plaintiffs did not have standing. Olson said that a ban on same-sex marriage would have the effect of “labeling their most sacred relationship” as “not OK.”
On Wednesday, the justices will hear two hours of arguments on the Defense of Marriage Act.
Nine states and the District of Columbia allow gay and lesbian couples to marry. Polls show that a majority of Americans support same-sex marriage, suggesting that further gains are likely in state legislatures and at the ballot box.
The trends lend support to both sides. The ban’s challengers ask the court to provide leadership in cementing victories in what they call the civil rights issue of the day. Its defenders counter that the increase in the number of states that allow same-sex marriage shows that the democratic process is working and that the court should not interfere.
The case, Hollingsworth v. Perry, No. 12-144, was filed in 2009 by Olson and David Boies, two lawyers who were on opposite sides in the Supreme Court’s decision in Bush v. Gore, which settled the 2000 presidential election. They argued that California voters had violated the federal Constitution the previous year when they approved Proposition 8, overriding a decision of the state’s Supreme Court allowing same-sex marriages.
Judge Vaughn R. Walker of the U.S. District Court in San Francisco agreed, issuing a broad decision that said the Constitution required the state to allow same-sex couples to marry. The decision has been stayed.
A divided three-judge panel of the U.S. Court of Appeals for the 9th Circuit, also in San Francisco, affirmed the decision. But the majority relied on a narrower ground, saying that voters were not permitted to withdraw the right to marry once it had been established by the state Supreme Court. The logic of the ruling was thus confined to California.