Court looks split on gay marriage

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The Supreme Court, hearing arguments on the emotionally charged issue of gay marriage for the first time, appeared willing Tuesday to restore marital rights to gays and lesbians in California but uncomfortable with legalizing same-sex marriage nationwide.

The justices sounded sharply divided as they considered Proposition 8, California’s ban on gay marriage, and wary of going too far, too fast. None of them spoke up for a sweeping ruling that would require every state to change its marriage laws.

But Justice Anthony M. Kennedy, who probably holds the deciding vote, said in the day’s most poignant moment that he was troubled by the effect of Proposition 8 on the nearly 40,000 children in the state being raised by same-sex couples. The court should hear “the voice of these children,” he said. “They want their parents to have full recognition and full status” that goes with marriage.


Kennedy, who has written two previous decisions in favor of gay rights, sounded anguished, admitting he was “wrestling” with whether to extend the same anti-discrimination protection to gays that the court gives to women but also expressed concern about taking the court “into unchartered waters” or over a “cliff.”

The court’s liberal justices more forcefully attacked the argument by Proposition 8 proponents that the purpose of marriage was for procreation, with Justice Elena Kagan asking at one point whether states could ban marriage between couples older than 55.

Charles J. Cooper, who argued for Proposition 8, said that would not be constitutional, adding that at least one member of an older couple would probably still be fertile, drawing laughter from the courtroom.

“Lots of people who get married can’t have children,” said Justice Stephen G. Breyer.

The arguments opened two days of hearings by the court on the controversial issue of same-sex marriage. On Wednesday, the justices will hear a constitutional challenge to the 1996 Defense of Marriage Act, or DOMA, which bans federal benefits for 130,000 legally married gay couples, including 18,000 couples in California.

The Obama administration and gay rights advocates say the provision is discriminatory and denies the married couples the “equal protection of the laws.” Appeals courts in Boston and New York have ruled it unconstitutional.

California’s voters approved Proposition 8 in 2008 to limit marriage to a man and a woman. However, the referendum was challenged in federal court in San Francisco and struck down by the U.S. 9th Circuit Court of Appeals last year on the grounds it took away from gays and lesbians a right to marry that they had won in the state courts.


If the Supreme Court had turned down the appeal in the California case, it would have had the effect of restoring gay marriage in California.

Such a move would not have set a legal precedent nor would it have forced a change in the states that forbid gay marriage.

Kennedy’s comments, combined with those of the four liberal justices, suggest the five will combine to seek a narrow approach in the California case. They could reject the appeal from the sponsors of Proposition 8 on the grounds that they lack legal standing to speak for the state of California. They could dismiss the appeal and let the 9th Circuit’s ruling stand. Or they could write a limited opinion that finds the California ballot measure unconstitutional. All three options would have the effect of allowing gay marriage in California.

Tuesday’s arguments highlighted deep philosophical divisions between liberals and conservatives over the potential effects of extending the right to marry to same-sex couples.

On the court’s right wing, Justice Antonin Scalia jumped most forcefully to defend Proposition 8. “There’s considerable disagreement among sociologists as to what [are] the consequences of raising a child in a single-sex family, whether that is harmful to the child or not,” he said.

Chief Justice John G. Roberts Jr. questioned whether a court should change “this institution that’s been around since time immemorial.”


“When the institution of marriage developed historically,” Roberts said, it “didn’t include homosexual couples.”

Justice Samuel A. Alito Jr., a third conservative member of the court, suggested it was too soon to make a decision, another point made by those backing the California ban.

“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,” Alito told Theodore B. Olson, the attorney challenging California’s ban. “I mean we ... do not have the ability to see the future.”

Joined by Justice Clarence Thomas, the most conservative justices appear to have four solid votes against any constitutional right for same-sex marriage.

But the court’s liberal justices repeatedly pressed Cooper to explain why committed gay couples should be denied the right to marry.

“What harm [do] you see happening?” Kagan asked at one point, demanding examples of “when and how and what harm to the institution of marriage or to opposite-sex couples” could come.


Cooper demurred, explaining that the more pertinent question was what benefit a state like California could derive from allowing gays and lesbians to marry.

Cooper has argued that traditional marriage has the benefit of fostering child-bearing, a purpose he warned could be subverted by same-sex marriage. “It will refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples,” he said.

Despite the back and forth over the fundamental implications of gay marriage, much of the argument Tuesday focused on possible procedural flaws in the case.

Roberts and Justice Ruth Bader Ginsburg questioned whether the sponsors of Proposition 8 had legal standing to defend it in the Supreme Court.

“Have we ever granted standing to the proponents of a ballot measure?” Ginsburg asked.

But Kennedy, a California native, said California law on ballot measures gave a special responsibility to the sponsors of initiatives. He said they could represent the people of the state when its officials refused to defend a measure approved by the voters.

This exchange suggested Kennedy was not looking for a way for the court to duck a ruling on California’s ban on gay marriage.


The justices meet behind closed doors later this week to vote on the two gay marriage cases. But what they decide is not likely to be known until late June.





‘The institution [of marriage] developed to serve purposes that, by their nature, didn’t include homosexual couples.’



‘They [children of gay marriage] want their parents to have full recognition and full status.... The voice of these children is important in this case.’



‘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?’



‘If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?’