Same-Sex Marriage Debate Takes Justices to ‘Unchartered Waters’

     WASHINGTON (CN) – A large crowd swarmed outside of the U.S. Supreme Court Tuesday while inside the justices heard arguments over the controversial gay marriage ban in California instituted with Proposition 8.
     The issue of standing represented a focal point of the roughly 80-minute hearing, offering the possibility that the high court might find a way out of deciding what Justice Anthony Kennedy called “unchartered waters.”
     Since both the U.S. and California governments have refused to defend Prop. 8 on appeal, the bill’s sponsors from ProtectMarriage.com have been left to argue that legalizing gay marriage harms the state’s interest in protecting traditional marriage and procreation.
     Though the voter-approved initiative has been struck down as unconstitutional by both a federal judge and the 9th Circuit, gay marriage remains illegal in California pending resolution by the Supreme Court.
     U.S. Solicitor General Donald Verrilli argued as amicus curiae for Prop. 8 opponents.
     With neither party able to completely convince the court of their standing arguments, Chief Justice John Roberts allowed the lawyers to also debate the merits of the case.
     “[Prop. 8] walls-off gays and lesbians from marriage, the most important relation in life, according to this court, thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal, and not okay,” Gibson, Dunn & Crutcher attorney Theodore Olson said in his opening statement for the gay couples who challenged the ban, Kristin Perry, Sandra Stier, Paul Katami and Jeffrey Zarillo.
     Chris Cooper, who represents Dennis Hollingsworth and the bill’s other sponsors, defended the voter initiative as Californians “hitting the pause button” on a controversial issue that will have real life effects on families and their children. He said Californians were “hitting the delete button” for a class of people.
     California voters passed Prop. 8 in 2008, amending the California Constitution to define marriage as between a man and a woman. The proposition reversed a California Supreme Court decision that gave same-sex couples the right to marry.
     Justice Antonin Scalia picked up on this point about mid-way through the hearing. “The California Supreme Court decides what the law is,” Scalia said. “That’s what we decide, right? We don’t prescribe law for the future,” stated Justice Antonin Scalia. “We decide what the law is. I’m curious, when did it become unconstitutional to exclude homosexual couples from marriage?”
     Olson answered by asking, “when did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?”
     Scalia chided the lawyer’s nonanswer while replying that those questions were rooted in the equal protection clause. “Don’t give me a question to my question,” Scalia said.
     Justice Samuel Alito also addressed the issue later during an exchange with Verrilli. “Traditional marriage has been around for thousands of years,” Alito said. “Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn’t a lot of data about its effect. And it may turn out to be a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe. But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? I mean we … do not have the ability to see the future.”
     Olson drew several parallels between same-sex marriage and interracial marriage during the hearing, recalling the court’s ruling in Loving v. Virginia, which invalidated laws prohibiting interracial marriage.
     Cooper countered that the procreative aspect of marriage separates the two issues.
     “The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus, 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,” Cooper said.
     Justice Elena Kagan, who was appointed by same-sex marriage supporter President Barack Obama, grilled Cooper on his procreation argument.
     “Suppose a state said that, because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55,” Kagan said. “Would that be constitutional?”
     Laughter rang out in the courtroom as Kagan continued, “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.”
     The justices also slammed Solicitor General Verrilli for failing to demonstrate a consistent stance on the subject on the federal government’s behalf.
     Verrilli had argued that government wants legal same-sex marriages only in states that already offer civil union benefits to same-sex couples.
     The justices noted the discord in Verrilli’s argument that there are fewer rights for states where same-sex couples have more rights, as compared to states that do not offer any civil union benefits.
     Trying to convince the court that now is the time to resolve the issue of same-sex marriage, Cooper fought off parallels to interracial marriage.
     “I’m glad that counsel for the respondents mentioned the Loving case, because what this court … ultimately said was patently obvious,” Cooper said.
     It had said “that the colors of the skin of the spouses is irrelevant to any legitimate purpose – no more than their hair colors – any legitimate purpose of marriage that interracial couples and same-race couples are similarly situated in every respect with respect to any legitimate purpose of marriage,” Cooper added. “That’s what this question really boils down here, whether or not it can be said that for every legitimate purpose of marriage, are opposite-sex couples and same-sex couples indistinguishable. And with all due respect to counsel and to the respondents, that is not a hard question.”
     The court will hear arguments Wednesday on the other gay rights case it took up with Hollingsworth v. Perry.
     In United States v. Windsor, the court will decide whether the Defense of Marriage Act violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their state.
     Edith Schlain Windsor had challenged the 1996 law after she was forced to pay federal estate tax when her wife, Thea Spyer, passed away in 2009. Federal law provides an estate-tax exemption on spousal inheritance, but gay widows do not qualify for the exemption under DOMA.
     Windsor and Spyer married each other in Canada and another jurisdiction where same-sex marriage is legal, and had been together in New York since 1963.
     After a federal judge hearing Windsor’s case struck down Section 3 of DOMA, the 2nd Circuit affirmed in June, finding that the law tramples on the rights of same-sex couples by denying them equal treatment.
     Since the Justice Department said it would no longer defend DOMA in 2011, the Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives retained counsel to appeal the decisions favoring Windsor.

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