Supreme Court teases out implications of Prop 8

Published: Tuesday, March 26 2013 9:20 p.m. MDT

Demonstrators stand outside the Supreme Court in Washington, Tuesday, March 26, 2013, where the court will hear arguments on California’s voter approved ban on same-sex marriage, Proposition 8.

Pablo Martinez Monsivais, ASSOCIATED PRESS

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.

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