First Posted: 3/26/2013
WASHINGTON — The Supreme Court suggested Tuesday it could find a way out of the case over California’s ban on same-sex marriage without issuing a major national ruling on whether America’s gays have a right to marry.
Several justices, including some liberals who seemed open to gay marriage, raised doubts during a riveting 80-minute argument that the case should even be before them. And Justice Anthony Kennedy, the potentially decisive vote on a closely divided court, suggested that the court could dismiss it with no ruling at all.
Such an outcome would almost certainly allow gay marriages to resume in California but would have no impact elsewhere.
Kennedy said he feared the court would go into “uncharted waters” if it embraced arguments advanced by gay marriage supporters. But lawyer Theodore Olson, representing two same-sex couples, said that the court similarly ventured into the unknown in 1967 when it struck down bans on interracial marriage in 16 states.
Kennedy challenged the accuracy of that comment by noting that other countries had had interracial marriages for hundreds of years.
There was no majority apparent for any particular outcome and many doubts expressed about the arguments advanced by lawyers for the opponents of gay marriage in California, by the supporters and by the Obama administration, which is in favor of same-sex marriage rights.
Kennedy made clear he did not like the rationale of the federal appeals court that struck down Proposition 8, the California ban, even though it cited earlier opinions in favor of gay rights that Kennedy wrote.
That appeals court ruling applied only to California, where same-sex couples briefly had the right to marry before voters adopted a constitutional amendment in November 2008 that defined marriage as the union of a man and a woman.
Several members of the court also were troubled by the Obama administration’s main point that when states offer same-sex couples civil union rights of marriage, as California and eight other states do, they also must allow marriage. The other states are: Colorado, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island.
Justice Samuel Alito described gay marriage as newer than such rapidly changing technological advances as cellphones and the Internet, and appeared to advocate a more cautious approach to the issue.
“You want us to assess the effect of same-sex marriage,” Alito said to Solicitor General Donald Verrilli. “It may turn out to be a good thing. It may turn out to be not a good thing.”
Charles Cooper, representing the people who helped get Proposition 8 on the ballot, ran into similar resistance over his argument that the court should uphold the ban as a valid expression of the people’s will and let the vigorous political debate over gay marriage continue.
Here, Kennedy suggested that Cooper’s argument did not take account of the estimated 40,000 children who have same-sex parents. “The voices of these children are important, don’t you think?” Kennedy said.
If the court is to find the exit without making a decision about gay marriage, it has two basic options.
It could rule that the gay marriage opponents have no right, or legal standing, to defend Proposition 8 in court. Such an outcome also would leave in place the trial court decision in favor of the two same-sex couples who sued for the right to marry. On a practical level, California officials probably would order county clerks across the state to begin issuing marriage licenses to gay and lesbian couples, although some more conservative counties might object.
Chief Justice John Roberts and Justice Ruth Bader Ginsburg had the sharpest questions for Cooper on the issue of standing.
The justices also could determine that they should not have agreed to hear the case in the first place, as happens a couple of times a term on average. In that situation, the court issues a one-sentence order dismissing the case “as improvidently granted.” The effect is to leave in place the appeals court ruling, which in the case of Proposition 8, applies only to California. The appeals court also voted to strike down the ban, but on somewhat different grounds than the trial court.
The Supreme Court waded into the fight over same-sex marriage at a time when public opinion is shifting rapidly in favor of permitting gay and lesbian couples to wed, but 40 states don’t allow it.
The court’s first major examination of gay rights in 10 years continues today, when the justices will consider the federal law that prevents legally married gay couples from receiving a range of benefits afforded straight married Americans.
The courtroom was packed on Tuesday and the crowd included actor-director Rob Reiner, who helped lead the fight against California’s Proposition 8. Some people waited since Thursday — even through light snow — for coveted seats for the argument.