WASHINGTON The U.S. Supreme Court struggled during oral arguments in a landmark case regarding same-sex marriage with not only how it should rule but whether it should rule on the constitutional issues involved in the controversial subject.
The justices heard arguments Tuesday in the first of two days of considering whether states and the federal government can limit marriage to the traditional definition of the union only of a man and a woman.
The high court weighed whether Proposition 8, a 2008 amendment approved by California voters, is constitutional. The Ninth Circuit Court of Appeals in San Francisco struck down Prop 8, which defined marriage in the traditional sense.
On Wednesday, the justices will hear arguments regarding a section of the Defense of Marriage Act (DOMA) that defines marriage in federal law as only a heterosexual union. The Second Circuit Court of Appeals invalidated that portion of the 1996 law.
While the justices spent most of Tuesday's session hearing arguments about the merits of Prop 8, they spent some time on whether its supporters had legal standing to defend the initiative in court. Advocates for Prop 8 appealed a federal judge's ruling against the amendment when state government officials, including the governor and attorney general, refused to do so.
Though the California Supreme Court and the Ninth Circuit ruled they had such standing, the justices queried both Prop 8 proponents and opponents on the question.
Associate Justice Anthony Kennedy even questioned whether the high court should have accepted appeal of the case.
The problem, Kennedy told pro-gay marriage advocate Theodore Olson, is "you're really asking ... for us to go into uncharted waters, and you can play with that metaphor there's a wonderful destination, it is a cliff."
Associate Justice Samuel Alito challenged U.S. Solicitor General Donald Verrilli's call for the court to determine the effects of same-sex marriage, especially since traditional marriage is thousands of years old and gay marriage even internationally is barely a decade old. The arguments included conjecture about the impact on the children of same-sex marriage.
"[T]here isn't a lot of data about its effect," Alito told him. "And it may turn out to be a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe.
"But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? ... [W]e do not have the ability to see the future.
"On a question like that, of such fundamental importance," Alito said, "why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?"
Arguing for the constitutionality of Prop 8, lawyer Charles Cooper told the justices it is reasonable "to be very concerned that redefining marriage ... as a genderless institution could well lead over time to harms to that institution and to the interests that society ... has always used that institution to address."
One of the concerns is redefinition of marriage "will sever its abiding connection to its historic traditional procreative purposes, and 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," Cooper said.
Associate Justice Elena Kagan challenged Cooper's argument, presenting the hypothetical case of a state deciding: "Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?"
Cooper agreed it would not be constitutional.
Associate Justice Sonia Sotomayor asked Olson what state restrictions including on polygamy and incest could exist if marriage is a fundamental right, as he was arguing.
"[I]f a state prohibits polygamy, it's prohibiting conduct," Olson argued. "If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status."
Associate Justice Antonin Scalia asked Olson, "[W]hen did it become unconstitutional to exclude homosexual couples from marriage?"
In a lengthy back-and-forth with Scalia, Olson said he could not set a date after saying at one point it was when "we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control...."
Afterward, a co-counsel for Prop 8's supporters said they have been asking the same question as Scalia.
"At what point in time did marriage, this cornerstone of civilization and the bedrock of our society, all of a sudden become unconstitutional? And we don't believe obviously it ever has," Austin Nimocks, senior counsel with Alliance Defending Freedom, told Baptist Press. "We believe Americans have the constitutional right to uphold, support and defend marriage as it has always been. And so we certainly are hopeful that the Supreme Court agrees with us."
Ethicist Richard Land said of the justices, "I hope they rule in favor of traditional marriage in both cases. That's my hope and prayer."
He suspects, however, the court has granted review to both the Prop 8 and DOMA cases to leave the issue in the hands of the states.
"If they were to rule in favor of same-sex marriage in both cases or against same-sex marriage in both cases, they make the role of the court the issue. And the Roberts court does not want to make the court the issue," said Land, president of the Ethics & Religious Liberty Commission (ERLC).
The path likely for the current court led by Chief Justice John Roberts is to uphold Prop 8 but defer to each state's definition of marriage in the DOMA case, he said.
"[T]hey make both sides unhappy, but they don't outrage both sides," said Land. "And having learned this lesson from the outrage and controversy provoked by Roe v. Wade, they will leave this contentious issue to the people in the various states and their elected representatives."
Both pro-choice and pro-life advocates have criticized the 1973 Roe decision that legalized abortion throughout the country for taking the decision out of the hands of the states.
Mat Staver, chairman of Liberty Counsel, said in a written statement, "If the Supreme Court goes the wrong way and rules that there is somehow a 'constitutional right to same-sex marriage,' it will become, in my view, an illegitimate arbiter of the rule of law. It will have lost its legitimacy in its entirety, and will have just simply morphed into a political machine. Common sense and a quick read of the Constitution say there is no such right to same-sex marriage."
The ERLC and Liberty Counsel were among many organizations that filed friend-of-the-court briefs in support of Prop 8. Many foes of Prop 8 filed competing briefs.
In friend-of-the-court briefs before the arguments, advocates for traditional marriage warned the court about the repercussions of legalizing same-sex marriage throughout the country. They said a ruling in support of gay marriage would:
• Harm religious freedom, possibly resulting in the loss of tax-exempt status by churches and other religious organizations.
• Undermine the legal reasoning for prohibiting polygamous marriages.
• Send the message children do not need both fathers and mothers.
Both sides turned out crowds of hundreds, maybe even a few thousand, to champion their causes. Advocates for traditional marriage participated in a March for Marriage to the Supreme Court that included a rally on the National Mall. Same-sex marriage advocates rallied in front of the court building.
The states that have legalized same-sex marriage are Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Washington and Vermont. Gay marriage also is legal in the District of Columbia.
California voters approved Prop 8 after the state Supreme Court had legalized gay marriage earlier in 2008.
The Prop 8 case is Hollingsworth v. Perry.