The Supreme Court signaled yesterday it may not be ready to issue a national ruling on whether the Constitution grants gays and lesbians a right to marry. During oral arguments in the case over California's Proposition 8, justices teased out the implications of taking on the appeal that struck down California's constitutional protection of traditional marriage.
The court's examination of same-sex marriage continues Wednesday, when the justices will consider the Defense of Marriage Act, a federal law that prevents gay couples legally married under state law from receiving a range of federal benefits afforded to straight married couples.
But the issue before the court on Tuesday was more fundamental: Does the Constitution require that people be allowed to marry whom they choose, regardless of either partner's gender? The fact that the question was in front of the Supreme Court at all was startling, given that no state recognized same-sex unions before 2003 and 40 states still don't allow them.
There is no question the issue stirs emotions. Demonstrators on both sides crowded the grounds outside the court, waving signs, sometimes chanting their feelings.
Inside, a skeptical Justice Samuel Alito cautioned against a broad ruling in favor of gay marriage precisely because the issue is so new.
"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? I mean, we do not have the ability to see the future," Alito said.
Indeed, many reports on the 80-minute argument in a packed courtroom concluded that the justices, including some liberals who seemed open to gay marriage, had doubts about whether they should even be hearing the challenge to California's Proposition 8, the state's voter-approved constitutional amendment that defines marriage between a man and a woman.
The amendment came in response to state court ruling that found a legislative ban on same-sex marriage violated California's state constitution.
But John Easton, a law professor at Chapman University in Southern California who filed an amicus brief with the high court in support of Proposition 8, had a different read on the justices' comments about taking on the case.
"(Justice Anthony Kennedy) was pointing out whether (the lower) federal courts should have even taken this case given that there was something unique about California and the way this played out," said Easton, who attended the hearing. "And the answer is no, and the only way to get there is reversing the 9th Circuit and upholding Prop 8."
The justices queried attorneys and spoke among themselves about the different avenues the case could take, from dismissing the case to upholding the federal 9th Circuit Court of Appeals or reversing the appellate court and upholding Proposition 8.
There was no majority apparent for any particular outcome as justices picked apart the arguments advanced by lawyers for the opponents of gay marriage in California, by supporters, and by the Obama administration, which favors same-sex marriage.
But Easton predicted the justices would not dismiss the case — which could ignite a rash of lawsuits in other states that constitutionally ban same-sex marriage — but would rule on the merits of Proposition 8.
He said the justices' questions and responses by the attorneys indicated to him that the best way the court can avoid a federal constitutional question on gay marriage is to allow states to continue experimenting with ways to accommodate same-sex couples and debating the definition of marriage by upholding Proposition 8.
"The court is clearly nervous about constitutionalizing this issue. They were saying, 'We don’t know all the ramifications of this, so why not let different states experiment?'" he said. "If they say Proposition 8 is unconstitutional then they will effectively take away California's ability to take its part in that experiment."
Kennedy acknowledged the recentness of legalizing same-sex unions, a point stressed repeatedly by Charles Cooper, the lawyer for the defenders of Proposition 8. Cooper said 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.
But Kennedy also pressed him to address the interests of the estimated 40,000 children in California who have same-sex parents.
"They want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?" Kennedy said.
Yet when Theodore Olson, the lawyer for two same-sex couples, urged the court to support such marriage rights everywhere, Kennedy said he feared such a ruling would push the court into "uncharted waters." Olson 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, noting that other countries had had interracial marriages for hundreds of years.
Several members of the court were troubled by the Obama administration's main contention 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.
"So a state that has made considerable progress has to go all the way, but at least the government's position is, if the state has done absolutely nothing at all, then it can do as it will," Justice Ruth Bader Ginsburg said.
Chief Justice John Roberts questioned whether gay marriage proponents were arguing over a mere label. "Same-sex couples have every other right. It's just about the label," Roberts said.
Reflecting the high interest in this week's cases, the court released an audio recording of Tuesday's argument shortly after it concluded and plans to do the same Wednesday. The last time the court provided same-day audio recordings was during its consideration of Obama's health care law.
Same-sex marriage is legal in nine states and the District of Columbia. The states are Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington.
Thirty states ban same-sex marriage in their constitutions, while 10 states bar them under state laws. New Mexico law is silent on the issue but does not recognize same-sex marriage.
Polls have shown increasing support in the country for gay marriage. According to a Pew Research Center poll conducted in mid-March, 49 percent of Americans now favor allowing gays and lesbians to marry legally, with 44 percent opposed.
A significant part of the give-and-take Tuesday concerned Cooper's argument that the state has a legitimate interest in limiting marriage to heterosexuals since they have the unique ability to have children.
He and Justice Elena Kagan engaged in a lengthy, sometimes humorous, exchange on the topic.
“If a state can use the ability to have children as a reason to prohibit same-sex marriage, what about couples over the age of 55?” Kagan asked.
"Your Honor, even with respect to couples over the age of 55, it is very rare that both parties to the couple are infertile," Cooper said.
Kagan cut in: "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."
At another point, Justice Antonin Scalia, who has dissented in the court's previous gay rights cases, invoked the well-being of children to bolster Cooper's case.
"If you redefine marriage to include same-sex couples, you must permit adoption by same-sex couples, and there's considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not," Scalia said.