Supreme Court justices sharply split as they debate California's gay marriage ban
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.
Show commenting policy
TribLive commenting policy
You are solely responsible for your comments and by using TribLive.com you agree to our Terms of Service.
We moderate comments. Our goal is to provide substantive commentary for a general readership. By screening submissions, we provide a space where readers can share intelligent and informed commentary that enhances the quality of our news and information.
While most comments will be posted if they are on-topic and not abusive, moderating decisions are subjective. We will make them as carefully and consistently as we can. Because of the volume of reader comments, we cannot review individual moderation decisions with readers.
We value thoughtful comments representing a range of views that make their point quickly and politely. We make an effort to protect discussions from repeated comments either by the same reader or different readers.
We follow the same standards for taste as the daily newspaper. A few things we won't tolerate: personal attacks, obscenity, vulgarity, profanity (including expletives and letters followed by dashes), commercial promotion, impersonations, incoherence, proselytizing and SHOUTING. Don't include URLs to Web sites.
We do not edit comments. They are either approved or deleted. We reserve the right to edit a comment that is quoted or excerpted in an article. In this case, we may fix spelling and punctuation.
We welcome strong opinions and criticism of our work, but we don't want comments to become bogged down with discussions of our policies and we will moderate accordingly.
We appreciate it when readers and people quoted in articles or blog posts point out errors of fact or emphasis and will investigate all assertions. But these suggestions should be sent via e-mail. To avoid distracting other readers, we won't publish comments that suggest a correction. Instead, corrections will be made in a blog post or in an article.
- Surge in small drones making airline pilots nervous
- Boston airport’s ‘naked man’ remains behind bars
- Obama’s immigration actions neglect business pleas
- Obama administration announces plan to limit smog-forming ozone
- Test vaccine to fight Ebola promising
- Liberal Supreme Court Justice Ginsburg has stent placed in heart artery
- Fissures begin to emerge among Dems
- In Ferguson, demonstrations over black youth’s slaying by police officer peter out
- E-cigarettes cut cravings, study finds
- Ferguson testimony filled with variations
- Fewer adults smoking, U.S. survey finds