Supreme Court, enigmatic as ever, weighs gay marriage ban

McClatchy NewspapersMarch 26, 2013 

— Supreme Court justices showed sharp divisions and passionate feelings Tuesday as they confronted California’s Proposition 8 ban on gay marriages.

During a roughly 85-minute argument that was both unusually long and, at times, markedly heated, the court’s conservative and liberal justices exposed fundamental differences that foreshadow difficult decisions to come. Tellingly, the frequent swing vote, Justice Anthony Kennedy, revealed some personal ambivalence.

In a positive sign for gay marriage supporters, Kennedy voiced strong sympathy for the approximately 40,000 California children who have been adopted by gay couples.

“They want their parents to have full recognition,” Kennedy said, with evident feeling, adding that “the voice of these children is important in this case.”

But in a sign of just how complicated the outcome could be, Kennedy and Justice Stephen Breyer mused aloud about whether the Supreme Court should even have agreed to hear the case called Hollingsworth v. Perry at all.

With hundreds of demonstrators amassed outside, and prominent activists, including Hollywood director Rob Reiner and “Milk” screenwriter Dustin Lance Black, gathered within, the justices were debating whether the Proposition 8 same-sex marriage ban violated constitutional guarantees of extra protection. The court’s eventual decision may either be narrowly confined or broadly sweeping.

Though questions do not always predict voting outcome, Chief Justice John Roberts, Jr., along with fellow conservative Justices Samuel Alito and Antonin Scalia, appeared most sympathetic to the arguments of Proposition 8 supporters.

“Traditional marriage has been around for thousands of years,” Alito declared, while “same-sex marriage is very new. It may turn out to be a good thing, it may turn out not to be a good thing.”

His voice rising, Scalia further pressed anti-Proposition 8 lawyer Theodore Olson to explain “when it became unconstitutional to exclude homosexual couples from marriage.”

Proposition 8, Olson argued “walls off gays and lesbians from marriage, the most important relation in life.”

Attorney Charles Cooper, the former Reagan administration official arguing in support of Proposition 8, stressed that recognizing same-sex marriages would “sever (marriage’s) abiding connection with its traditional procreative context.”

In turn, Justice Elena Kagan countered with the example of elderly couples and others who marry, despite being past child-rearing age.

“There are lots of people that get married that can’t have children,” Breyer added.

The justices divided their time between discussing whether Proposition 8 supporters had the “standing” to argue the case, since California officials refused to defend the initiative, and the measure’s underlying merits. Most of the time was spent on the merits.

San Francisco officials legalized gay marriage in February 2004. Several thousand same-sex couples were married before the state Supreme Court blocked the city’s action. The California Supreme Court subsequently recognized same-sex marriage rights in May 2008, after which about 18,000 same-sex couples were married.

In November 2008, the state’s voters approved Proposition 8, which amended the California Constitution to declare that “only marriage between a man and a woman is valid or recognized” in the state. The 9th U.S. Circuit Court of Appeals, in turn, struck down Proposition 8 on the grounds that it stripped California residents, without a legitimate justification, of a right that had previously been granted.

More than 110 reporters spilled over from the courtroom into an adjacent hallway, many sitting behind pillars that made it impossible to see all the justices who were speaking. All told, some 400 lawyers, guests and members of the public attended, with some public visitors staying only for about five minutes before being rotated out.

Justice Clarence Thomas, as his custom, was the only high court member not to speak or ask a question.

A decision in the Proposition 8 case, as well as the Defense of Marriage Act case being heard Wednesday, is expected by the end of June.

Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10

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