WASHINGTON — As the Supreme Court on Tuesday weighed the very meaning of marriage, several justices seemed to have developed a case of buyer’s remorse. Some wondered aloud if the court had moved too fast to address whether gay and lesbian couples have a constitutional right to marry.
“I just wonder if this case was properly granted,” said Justice Anthony Kennedy, who probably holds the decisive vote.
Justice Sonia Sotomayor seemed to agree. “If the issue is letting the states experiment and letting the society have more time to figure out its direction,” she said, “why is taking a case now the answer?”
Those justices and others seemed driven to that conclusion by an argument in which no attractive middle ground emerged on the substance of the question before the court: whether voters in California were entitled to enact Proposition 8, which overturned a state Supreme Court decision allowing same-sex marriage.
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Justices who appeared sympathetic to same-sex marriage indicated that there was no principled way to issue a ruling that could apply only in California or only in the nine states that have robust civil-union or domestic-partnership laws but withhold the word marriage.
That appeared to leave the court with an all-or-nothing choice on the merits: either a ruling that would require same-sex marriage in all 50 states or one that would say that all states may do as they wish. Neither choice seemed attractive to a majority of the justices.
Five members of the court asked questions indicating that they might vote to dismiss the case on the threshold issue that supporters of Proposition 8 lacked standing to appeal a lower court’s decision. Chief Justice John Roberts Jr., whose questions on the merits indicated discomfort with requiring states to allow same-sex marriage, seemed particularly interested in the standing issue.
When Kennedy turned to the merits of the case, he voiced sympathy for the children of gay and lesbian couples.
“There are some 40,000 children in California,” he said, who “live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case.”
But Kennedy said he was uncertain about the consequences for society of allowing same-sex marriage. “We have five years of information to weigh against 2,000 years of history or more,” he said, referring to the long history of traditional marriage and the brief experience allowing gay men and lesbians to marry in some states.
Justice Samuel Alito echoed the thought and said the court should not move too fast.
“You want us to step in and render a decision based on an assessment of the effects of this institution, which is newer than cellphones or the Internet?” he said.
Many of the questions directed to Charles Cooper, a lawyer for opponents of same-sex marriage, concerned whether there was any good reason to exclude same-sex couples from the institution.
He counseled caution. “It is an agonizingly difficult, for many people, political question,” he said. “We would submit to you that that question is properly decided by the people themselves.”
Justice Elena Kagan asked him how letting gay and lesbian couples marry harmed traditional marriages. “How does this cause-and-effect work?” she asked.
Cooper responded that “it will 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.” The key to marriage, he said, is procreation.
Justice Stephen Breyer asked Cooper about sterile opposite-sex couples.
“There are lots of people who get married who can’t have children,” he said.
Kagan asked whether the government could ban a man and a woman over 55 years from getting married even though they would not be able to have children. Cooper said that the court could not constitutionally ban such marriages, but he said that was no reason to alter traditional definitions.
Justice Antonin Scalia remarked, sarcastically, that the government could require people applying for a marriage license to fill out an intrusive questionnaire. When Kagan noted that people were frequently asked about their age by the government, Scalia joked about former Sen. Strom Thurmond, who fathered in his 70s and served in the Senate until age 100.
Roberts said history was on the side of traditional marriage. “The institution developed,” he said, “to serve purposes that, by their nature, didn’t include homosexual couples.”
Theodore Olson, representing two couples challenging Proposition 8, said it was pernicious. “It walls off gays and lesbians from marriage, the most important relation in life,” he said, “thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal and not OK.”
The case, Hollingsworth v. Perry, was filed in 2009 by Olson and David Boies, two lawyers who were on opposite sides in the Supreme Court’s decision in Bush v. Gore, which settled the 2000 presidential election. Boies looked on attentively as Olson presented his argument.
The Supreme Court will hear a second same-sex marriage case Wednesday, United States v. Windsor, No. 12-307, concerning the federal Defense of Marriage Act (DOMA). That case centers on a part of the law that bans the federal government from providing benefits to gay and lesbian couples married in states that allow such unions. The court is likely to issue decisions in the last week of June.
Almost half of Tuesday’s argument, which lasted almost 90 minutes, concerned the threshold issue of whether proponents of Proposition 8 have standing. California officials lost in the trial court, and they did not appeal the judgment against them. Proponents of the initiative did appeal, but several justices said they had neither suffered a direct injury nor were authorized to represent the interests of the state.
In affirming the trial court’s decision striking down Proposition 8, the U.S. Court of Appeals for the 9th Circuit, in San Francisco, relied on a narrow ground, saying that the state’s voters were not permitted to withdraw the right to marry once it had been established by the state Supreme Court. The logic of the ruling was thus confined to California.
Sotomayor asked, “Is there any way to decide this case in a principled manner that is limited to California only?”
Solicitor General Donald Verrilli Jr. argued that the court should require legality of same-sex marriage in states that provide all of the burdens and benefits of marriage but withhold the name. Eight states in addition to California will soon be in that situation.
Justice Ruth Bader Ginsburg said the distinction made no sense. “A state that has made considerable progress has to go all the way,” she said. But, she added, “the state has done absolutely nothing at all can do as it will.”
Having indicated their discomfort with one-state and nine-state middle grounds, the justices found themselves facing an uncomfortable all-or-nothing choice. Some seemed prepared to blink.
When Cooper rose to give his rebuttal at the end of the session, Kennedy asked the first question. “You might address,” the justice said, “why you think we should take and decide this case.”