TribLIVE

| USWorld

 
Larger text Larger text Smaller text Smaller text | Order Photo Reprints

Supreme Court justices sharply split as they debate California's gay marriage ban

Email Newsletters

Click here to sign up for one of our email newsletters.

Daily Photo Galleries

'American Coyotes' Series

Traveling by Jeep, boat and foot, Tribune-Review investigative reporter Carl Prine and photojournalist Justin Merriman covered nearly 2,000 miles over two months along the border with Mexico to report on coyotes — the human traffickers who bring illegal immigrants into the United States. Most are Americans working for money and/or drugs. This series reports how their operations have a major impact on life for residents and the environment along the border — and beyond.

By McClatchy Newspapers
Tuesday, March 26, 2013, 7:09 p.m.
 

WASHINGTON — Supreme Court justices revealed sharp and passionately held differences on Tuesday as they confronted California's ban on gay marriages.

During an 80-minute argument that was unusually long and, at times, markedly heated, the back and forth between the court's conservative and liberal wings foreshadowed difficult decisions to come. Perhaps tellingly, the frequent swing vote, Justice Anthony Kennedy, revealed some ambivalence.

In a positive sign for gay marriage supporters, Kennedy voiced strong empathy for the approximately 40,000 California children whose parents are same-sex couples.

“They want their parents to have full recognition and full status,” Kennedy said, with evident feeling, adding that “the voice of these children is important in this case, don't you think?”

But in a sign of how complicated the outcome might be, Kennedy and Justice Sonia Sotomayor mused aloud about whether the Supreme Court should have agreed to hear the case — Hollingsworth v. Perry — at all. The court has several options, among them issuing a narrow decision or ducking the case altogether.

“The problem with this case is that you're really asking for us to go into uncharted waters,” Kennedy cautioned Theodore Olson, a lawyer arguing against the ban.

With hundreds of demonstrators amassed outside, the justices were debating whether California's Proposition 8, which banned same-sex marriage, violated constitutional guarantees of equal protection.

Although California Attorney General Kamala Harris, who was also present, noted that “it's a mistake to make a prediction about a justice's state of mind based on a question,” some judicial inclinations seem apparent.

There seemed to be little to no support for an Obama administration proposal that would recognize a right to gay marriage in states that, like California, ban gay marriage but recognize gay civil unions. A sweeping decision covering all 50 states didn't leap out as an obvious solution, either, with Olson advising justices that they “could write a narrower decision.”

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 — so there isn't a lot of data about its effect. It may turn out to be a good thing; it may turn out not to be a good thing.”

His voice rising, Scalia pressed Olson to explain “when did it become unconstitutional to prohibit gays from marrying?”

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 historic traditional procreative purposes.”

“Marriage itself is the institution that society has always used to regulate these heterosexual, procreative relationships,” Cooper said.

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

“There are lots of people that get married that can't have children,” Justice Stephen 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. The standing question might become an off-ramp for the case, short of a big decision.

If the court decides that the Proposition 8 supporters lack standing, that kicks the case all the way back to the original decision by U.S. District Judge Vaughn Walker striking down the ballot measure. The legal consequences of that remain uncertain.

“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?” Sotomayor asked rhetorically.

Subscribe today! Click here for our subscription offers.

 

 


Show commenting policy

Most-Read Nation

  1. Hope dims for Fla. teens lost at sea
  2. Medicare patients’ outcomes improve
  3. Family finds $1M gold treasure in Florida
  4. L.A. bans handgun, rifle magazines that hold more than 10 rounds
  5. Cat found alive aboard sunken boat pulled from Lake Havasu
  6. Pollard, spy for Israel in the 1980s, to be released from prison
  7. GOP says there’s no deal with Clinton on Benghazi testimony
  8. Congress embraces highway bill
  9. House skeptical but reserved on Iran deal
  10. Conservation group reports pollution high in state parks
  11. Minn. man accused of slaying protected Zimbabwean lion says he thought the trip was legal