News Column

SCOTUS Divided on Gay Marriage Ban

March 26, 2013
supreme court

The U.S. Supreme Court appeared reluctant Tuesday to grant sweeping marriage rights to same sex couples, but at the same time also suggested California's Proposition 8 ban on gay marriage may not survive.

During more than an hour of arguments, the justices were clearly divided over California's law and whether the time is right for the high court to even take on the gay marriage question. Justice Anthony Kennedy, a key swing vote, wondered whether the court perhaps should not have taken on the controversy at this time.

With both liberal and conservative justices particularly worried about a broader ruling that might apply to all states, 37 of which now ban gay marriage, the court pressed lawyers on both sides about how far they should go.

"Is there any way to decide this case in a principled manner that is limited to California?" Justice Sonia Sotomayor at one point asked Theodore Olson, who argued the case for same-sex couples.

But the questioning also cast doubt on Proposition 8's future, with some justices clearly concerned it may trample on the rights of gay and lesbian couples.

How does the law affect the roughly 40,000 children of same-sex couples now in California Kennedy asked Proposition 8 lawyer Charles Cooper, who argued about the need to preserve traditional marriage to protect children.

"The voice of those children is important in this case, isn't it?" Kennedy asked.

Other justices, including Chief Justice John Roberts, were skeptical of a court decision finding same-sex marriage bans unconstitutional. "It's just about the label (of marriage) in this case," Roberts told Olson. "All you're interested in is the label, and ... in changing the definition of the label."

There was concern among some justices that Proposition 8's sponsors may not have the legal authority to defend the law for the state, with the governor and attorney general refusing to do so. A finding that the sponsors lacked such authority would result in enforcement of the lower court decision that the gay marriage ban unconstitutional. That outcome would allow gay marriage in California, leaving broader decisions for another day.

Even there, however, the justices were splintered. Several indicated they were troubled by the possibility the governor and attorney general could trump a ballot measure they oppose simply by refusing to defend it in court.

The Supreme Court is reviewing a federal appeals court ruling last year finding Proposition 8 unconstitutional because it stripped away a previous right for same-sex couples to marry in California. In that ruling, the 9th U.S. Circuit Court of Appeals took a narrow approach that, if adopted by the Supreme Court, would limit the legal impact to California, and open the door to same-sex marriages in the nation's largest state.

Tuesday's courtroom drama began in early 2009, when two same-sex couples challenged Proposition 8, arguing that it violates the equal protection rights of gay and lesbian couples. The lawsuit prompted the nation's first full-blown trial over gay marriage rights, and in 2010 former San Francisco Chief U.S. District Judge Vaughn Walker declared the ban unconstitutional.

The Supreme Court's decision is considered a bellwether in the battle over same-sex marriage, particularly in California, where the state Supreme Court in 2008 struck down the state's previous laws forbidding gay nuptials. That decision allowed more than 18,000 couples to marry legally -- marriages that remain intact -- but also triggered a political backlash that led to voters passing Proposition 8.

Since that time, the number of states permitting same-sex marriage has grown to nine and polls have shown increasing support for gay marriage nationally, including in California, where a recent Field Poll showed 61 percent of voters now back it. But gay marriage opponents argue that the Supreme Court should not step into the fray now, citing the fact that 37 states still outlaw same-sex marriage.

In addition to deciding broader questions over whether Proposition 8 is constitutional, the Supreme Court must resolve whether the measure's supporters have a legal right to defend the law in court after the governor and attorney general refused to do so. If the high court determines Proposition 8's backers do not have that authority, known as standing, it would short circuit the appeals and effectively return the case to Walker's original decision -- likely meaning same-sex couples would gain the right to marry in California without resolving the legality of similar laws in other states.

On Wednesday, the U.S. Supreme Court will hear arguments in another same-sex marriage case with national implications, a challenge to the 1996 federal Defense of Marriage Act, which denies same-sex couples federal benefits, from tax status to Social Security.

A federal appeals court declared the law unconstitutional in a case out of New York, where a woman was denied estate tax benefits after her spouse died even though New York has legalized same-sex marriage.

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(c)2013 San Jose Mercury News (San Jose, Calif.)

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