The Free Press, Mankato, MN

March 26, 2013

Kennedy questions whether top court should rule on gay marriage

By Greg Stohr
Bloomberg News

WASHINGTON — The Supreme Court Tuesday 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.

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 centers 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," Kennedy said during the 80-minute session Tuesday in Washington. 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.

The argument comes as public support for gay marriage hits 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 urged the court to overturn Proposition 8.

The high court has a spectrum of options. It could reinstate California's ban, known as Proposition 8, 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 today debating whether the supporters of Proposition 8 have "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 recognize gay marriages.

"I'm not sure that it's right to view this as excluding a particular group," 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," Kagan said.

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," Kennedy said. "The voice of those children is important in this case, don't you think?"

At the same time, Kennedy said the reasoning of the federal appeals court that struck down California's ban was "very odd."

Kennedy has been a champion of gay rights in past cases, writing the 2003 decision that said states can't criminalize 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 Wednesday will take up the 1996 U.S. 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.

The packed courtroom audience included actor and director Rob Reiner, as well as other spectators who spent as many as four nights waiting in line, sometimes in rain and snow, to secure a seat for the historic session. Also in attendance was Roberts' cousin, Jean Podrasky, who told the Los Angeles Times this week that she is gay and supports same-sex marriage.

Outside the court, thousands of other people demonstrated on both sides of the issue. Gay marriage supporters cheered a man in a pink fishnet leotard and a rainbow skirt who danced in front of people holding signs that read "Same Sex Marriage Dooms Nation" and "Death Penalty For Fags."

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 Solicitor General Theodore Olson joined forces with David Boies, his opponent from the Bush v. Gore case, which resolved the 2000 presidential election deadlock. The pair, representing two same- sex couples, set out to win a Supreme Court ruling establishing gay marriage as a constitutional right.

At the appeals court level, they instead won a narrower ruling with limited applicability beyond California's borders. The San Francisco-based 9th U.S. Circuit Court of Appeals said Proposition 8 violated the constitutional guarantee of equal protection by stripping same-sex couples of a right they once had -- and that heterosexual couples would continue to possess.

Supporters of the law are led by Dennis Hollingsworth, a former California state senator.

Their lawyer, Charles Cooper, said Tuesday that states should be allowed to work through the "agonizingly difficult issue."

"The question before this court is whether the Constitution puts a stop to that ongoing democratic debate and answers this question for all 50 states," Cooper argued.

Olson argued that Proposition 8 "was stigmatizing a class of Californians based upon their status and labeling 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 Olson's contentions.

"When did it become unconstitutional to exclude homosexual couples from marriage?" Scalia asked. "1791? 1868, when the 14th Amendment was adopted?"

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?" Olson asked. "When did it become unconstitutional to assign children to separate schools?"

Scalia said the answers to those questions were easy ones. "At the time that the equal protection clause was adopted," he said, before adding, "but don't give me a question to my question."

When Scalia repeated his question later, Olson responded, "You've never required that before."

Support for gay marriage has soared in recent years. A Pew Research Center poll released last week found that 49 percent of adults supported legalization, with 44 percent opposed. Ten years earlier a Pew poll found 33 percent in support, with 58 percent opposed. The latest poll had a margin of error of plus or minus 3 percentage points.

Californians back gay marriage by almost 2-1, with 61 percent supporting it and 32 percent opposed, according to a Field Poll released last month. That survey had a margin of error of plus or minus 3.5 percentage points.

Tuesday's session was exactly a year after the justices heard the first day of arguments on Obama's health-care law.

— With assistance from Nick Taborek in Washington.