Author: Greg Stohr
Publication: The Age
Publication Date: March 27, 2013
WASHINGTON: The US Supreme Court raised the prospect that it will decline to say whether the constitution gives gays the right to marry, in an argument that revealed a chasm among the justices on one of the country’s most divisive issues.
A decision to back out of the case would be an anticlimax to a clash billed as potentially the biggest civil-rights dispute in decades. It would let same-sex marriage resume in California, without directly affecting the rest of the country.
“I’m not sure that it’s right to view this as excluding a particular group.” Chief Justice John Roberts
Justice Anthony Kennedy, often the court’s swing vote, twice asked whether the most prudent course would be not to rule in the case, which centres on California’s Proposition 8, a voter-approved ban on gay marriage. He said the case was taking the court into ‘‘uncharted waters’’.
‘‘I just wonder if the case was properly granted,’’ Justice Kennedy said during the 80-minute session in Washington on Tuesday. He suggested the appeals court decision striking down Proposition 8 was too narrow to warrant a high court ruling on the sweeping questions in the case.
Public support for gay marriage has hit record levels. Nine states and the District of Columbia now let gay couples marry. President Barack Obama backs same-sex marriage, and his top Supreme Court lawyer on Tuesday urged the court to overturn Proposition 8.
The high court has a spectrum of options. It could reinstate California’s ban and leave each state to make its own decision about letting gays marry. It could issue a narrow ruling that would create a right to gay marriage in California and perhaps a handful of other states. Or it could announce a constitutional right to gay marriage nationwide.
The court could also sidestep the marriage issue by ruling on procedural grounds. The justices spent about 20 minutes debating whether the supporters of Proposition 8 had ‘‘standing’’ to defend it on appeal. A ruling that they don’t would reinstate a trial judge’s decision declaring Proposition 8 to be unconstitutional.
The session highlighted a deep divide among the nine justices. Chief Justice John Roberts led the Republican-appointed wing in suggesting states shouldn’t be required to recognise gay marriages.
‘‘I’m not sure that it’s right to view this as excluding a particular group,’’ Justice Roberts said. ‘‘When the institution of marriage developed historically, people didn’t get around and say ‘let’s have this institution, but let’s keep out homosexuals’. The institution developed to serve purposes that, by their nature, didn’t include homosexual couples.’’
The four Democratic-appointed justices voiced support for gay marriage. Justice Elena Kagan questioned the contention by proponents of Proposition 8 that marriage was designed to foster and regulate procreation. She asked whether the state could bar any marriages when both people are over 55.‘‘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,’’ Justice Kagan said.
Justice Kennedy aimed questions at both sides. He suggested that children of same-sex couples suffer ‘‘immediate legal injury’’ from California’s ban.
‘‘They want their parents to have full recognition and full status,’’ Justice Kennedy said. ‘‘The voice of those children is important in this case, don’t you think?’’
At the same time, Justice Kennedy said the reasoning of the federal appeals court that struck down California’s ban was ‘‘very odd’’.
Justice Kennedy has been a champion of gay rights in past cases, writing the 2003 decision that said states cannot criminalise gay sex acts. Even so, he made clear in that case that he wasn’t passing judgment on same-sex marriage.
The case is the first of two gay-marriage arguments this week for the court, which on Wednesday will take up the 1996 US Defense of Marriage Act, known as DOMA. That law defines marriage as a heterosexual institution, barring legally married gay couples from claiming the federal benefits available to opposite-sex married couples.
California voters approved Proposition 8 in 2008. The ballot initiative reversed a decision by the California Supreme Court, which five months earlier had said the state constitution guaranteed the right to gay marriage. Gay marriage is on hold in California while the litigation plays out. More than 18,000 same-sex couples were married in the state before the ballot initiative passed.
In challenging the law, former Republican US Solicitor General Theodore Olson joined forces with David Boies, his opponent from the Bush v. Gore case, which resolved the 2000 presidential election deadlock. Mr Olson argued that Proposition 8 ‘‘was stigmatising a class of Californians based upon their status and labelling their most cherished relationships as second-rate, different, unequal and not OK’’.
He sparred with Justice Antonin Scalia, who made little secret of his disagreement with Mr Olson’s contentions.‘‘When did it become unconstitutional to exclude homosexual couples from marriage?’’ Justice Scalia asked. ‘‘1791? 1868, when the 14th Amendment was adopted?’’
Mr Olson responded with his own rhetorical questions, alluding to landmark Supreme Court decisions on race discrimination.
‘‘When did it become unconstitutional to prohibit interracial marriage?’’ Mr Olson asked. ‘‘When did it become unconstitutional to assign children to separate schools?’’
Justice Scalia said the answers to those questions were easy. ‘‘At the time that the equal protection clause was adopted,’’ he said, before adding, ‘‘but don’t give me a question to my question.’’
Support for gay marriage has soared in recent years. A Pew Research Centre poll released last week found that 49 per cent of adults supported legalisation, with 44 per cent opposed. Ten years earlier a Pew poll found 33 per cent in support, with 58 per cent opposed. Californians back gay marriage by almost two to one, with 61 per cent supporting it and 32 per cent opposed, according to a Field Poll released last month.