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Court might sidestep major ruling on gay marriage


LAST UPDATED: 10:57 a.m. HST, Mar 26, 2013

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 Wednesday, 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 would 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 a valid expression of the people's will and let the vigorous political debate over gay marriage continue.

But Kennedy pressed him also 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.

The justice, whose vote usually decides the closest cases, also made clear he did not like the rationale of the federal appeals court that struck down Proposition 8, even though it cited earlier opinions in favor of gay rights that Kennedy had written.

That appeals court ruling applied only to California, where same-sex couples briefly had the right to marry before the state's voters in November 2008 adopted Proposition 8, a constitutional amendment that defined marriage as the union of a man and a woman.

Several members of the court also were troubled by the Obama administration's main contention that when states offer same-sex couples civil union rights of marriage, as California and eight other states do, they also must allow marriage. The other states are: Colorado, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island.

"So a state that has made considerable progress has to go all the way, but at least the government's position is, if the state has done absolutely nothing at all, then it can do as it will," Justice Ruth Bader Ginsburg said.

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, although some more conservative counties might object.

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.

Both sides of the case 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. The states are Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington.

Thirty states ban same-sex marriage in their constitutions, while ten states bar them under state laws. New Mexico law is silent on the issue.

Polls have shown increasing support in the country for gay marriage. According to a Pew Research Center poll conducted in mid-March, 49 percent of Americans now favor allowing gays and lesbians to marry legally, with 44 percent opposed.

A good part of the give-and-take Tuesday concerned Cooper's argument that the state has a legitimate interest in limiting marriage to heterosexuals since they have the unique ability to have children.

He and Justice Elena Kagan engaged in a lengthy, sometimes humorous, exchange on the topic.

If a state can use the ability to have children as a reason to prohibit same-sex marriage, what about couples over the age of 55? Kagan asked.

"Your Honor, even with respect to couples over the age of 55, it is very rare that both parties to the couple are infertile," Cooper said.

Kagan cut in: "I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage."

At another point, Justice Antonin Scalia, who has dissented in the court's previous gay rights cases, invoked the well-being of children to bolster Cooper's case.

"If you redefine marriage to include same-sex couples, you must permit adoption by same-sex couples, and 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," Scalia said.

The California case was argued 10 years to the day after the court took up a challenge to Texas' anti-sodomy statute. That case ended with a forceful ruling prohibiting states from criminalizing sexual relations between consenting adults.

Kennedy was the author of the decision in Lawrence v. Texas in 2003, and he is being closely watched for how he might vote on the California ban. He cautioned in the Lawrence case that it had nothing to do with gay marriage, but dissenting Justice Scalia predicted the decision would lead to the invalidation of state laws against same-sex marriage.

Kennedy's decision is widely cited in the briefs in support of same-sex unions.

The California couples, Kris Perry and Sandy Stier of Berkeley and Paul Katami and Jeff Zarrillo of Burbank, filed their federal lawsuit in May 2009 to overturn the same-sex marriage ban that voters approved the previous November. The ballot measure halted same-sex unions in California, which began in June 2008 after a ruling from the California Supreme Court.

Roughly 18,000 couples were wed in the nearly five months that same-sex marriage was legal and those marriages remain valid in California.

The case is Hollingsworth v. Perry, 12-144.

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false wrote:
An interesting, thoughtful analysis. Very unusual for this subject, which tends to stimulate commentaries full of one-sided passion OR namby-pamby commentaries which seek a middle path.

I find myself agreeing with the one statement attributed to Justice Ruth Bader Ginsburg. The argument that states which allow same sex couples to have civil unions MUST therefore be compelled to offer complete marriage equality, while those which are more discriminatory, would NOT be so compelled, is ridiculous on its face.

I believe all committed couples seeking legal recognition of their relationships, along with defined responsibilities, rights and obligations, should be covered by the same law. It is only anti-gay prejudice which explains the discrimination. But it is not clear this Court is capable of dealing with the issue at this time. Public opinion is definitely moving towards a more egalitarian view and legislatures across the country are following suit. If the Court declines to issue a decisive decision at this time, I only hope they do not attempt to roll bak the progress which has already been made in states like California.

Scalia, along with Thomas, are the two most obviously emotionally upset by the notion of gay sexuality. I expect the reason for that fear is the one which quickly comes to mind as the basis for "homophobia." From Scalia's comments here, it appears he knows he is on the losing side of history and is looking for a way for the Court to avoid making a historical decision, as it would likely go against his prejudice. So I expect the analysis presented here is correct and what remains to be seen is how they evade the decision and what happens to the California case as a result.

on March 26,2013 | 10:54AM
daniwitz13 wrote:
This issue is NOT about love, equality, tax exemptions. Rights and benefits, etc. These are ALL trivial and irrelevant to the case at hand. This case has everything to do with the Formula for our Civilization, and Life itself. Everyone standing came from a Male/Female Formula. There is no other Formula to consider, there is none. This Formula does NOT have other options to choose from. Millions of years and Hundred millions of Humans that make up our Civilization is still one and the same a Male and Female. People develop EVERYTHING on our Planet, it makes up our Govt. our Constitution and our Society. If People does all this, then what makes People is important and a concern to everyone. What Law then is written to acknowledge and maintain what gives us everything? We celebrate our Constitution, but not what makes it all possible? Who made our Constitution? Where did the come from? Space Aliens? They came from their Mothers and Fathers, a Male and Female. The Supreme Court is tasked to decide whether a Formula that has a score of Hundreds of Millions to another Formula that has a score of Zero. It would be a stretch to say that they are EQUAL. It is the Homosexuals that do not and should not have any standing in any Court. Why? An Orientation is an intangible. There are no known methods to detect it in an individual. A case in point. A Senator Rob Portman was surprise that his son "told" him and his Wife that he is Gay. This while living day in and day out for about 19 years. Unknown. Recently an NFL Player wants to "out" himself to the world that he is Gay. So it seem that no one knows even in close contact daily. Unknown. The only "claim to be" while totally unknown. Some marry and have Children with Straights, then after years, come "out" and "claim" that they are Gay. Therefore if one lies about it, no one knows. An Unknown and unprovable entity. if they Pass a bill giving a Million dollars to Gays, and there is 10,000 people in a line to receive it. would there be a concern it they really are Gay? Yes. But, Pity all.
on March 26,2013 | 12:32PM
tiki886 wrote:
If same sex married is upheld as a civil right or human right, (which it is not) every Church will then become the equivalent of the KKK. Their charitable 501c3 tax exempt status will become void. Churches will be forced to marry same sex couples or forfeit property and/or dissolution, fines and prison time. The qualifications for joining the Priesthood in any religious denomination will be dictated from Washington, DC. Parochial Schools will disappear. Christians will be persecuted just as they are in Communist countries and Islamist countries. America was the last bastion of freedom. America was founded by people fleeing religious persecution and history has repeated itself once again. Only this time there is no where to flee. America was our last hope. The decline of a free society continues under the leadership of Liberal-Progressive dictatorship and their minions.
on March 26,2013 | 12:54PM
blackmurano wrote:
Redefining marriage would forment culture wars everywhere, ending with a draconian loss of religious freedom. If same-sex marriage is defined as a basic human right, a matter of justice and equality - as its advocates claim - then no one could publicy defend real marriage for long. Government would have to treat traditional views as irrational bigoty. Everyone who holds the view of marriage heretofore held in every culture would be opposed by this culture. Ministires would be force to revise their principles or close up shop. If the state redefines marriage, we would expect to see marriage collapse as a public institution. Several Eropean countries in which same-sex marriage is legal show what may come. Laws have permitted same-sex marriage in the Netherlands since 2001, and rath than a marriage paradise, with straight and gay couples typically living in long-term monogamous bliss, fewer and fewer Dutch bother to get married at all. Children are no longer connected to marriage. People live together, and many have a hard time figuring out why marriage is even relevant. We shouldn't fall for the superficial appeals of individual rights in this debate. N one has a right to marry someone of the same-sex. Given with marriage is, two people of the same-sex cannot marry each other. Rights comes from our nature, and our natures comes from God. If you deny that, then you deny the basis of all our other rights. The "moral" case for same-sex marriage, then, is ultimately self-destroying. As Christians, we need to be making that case in public, before it's too late.
on March 26,2013 | 04:11PM
cojef wrote:
A very complex issue facing the Supreme Court. Gays and Lesbians couples are seeking rights not of morality but for equality as to how laws are interpreted and administered on the whole based on a union between two people who choose to live in union with each other. In the strictest sense it is how our laws are applied to the so called conventional married couple as opposed to a union between Gays and or Lesbians. We can start from the Federal income tax code, the estate in probate situations, health coverages and etc., the list can get awfully long. There are number who profess to want recognition from their church, which may server to their disadvantage if they persist to pursue this issue. The religious institutions will not be able to cope this gay/lesbian union which will question the churches' dogma. Acknowledge that it is more complex but neverthe the less, it's how I see the injustices that is plainly discernable from where I sit.
on March 26,2013 | 05:30PM
hawaiikone wrote:
Considering the long term effects of ignoring the importance of God's direction in our lives ought to encourage some further contemplation of the consequences we risk by dismissing the church as an unimportant contributor to this issue. Ridicule the messenger if you must, but denial of the message can ultimately prove very harmful to your health.
on March 26,2013 | 06:21PM
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