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Prop 8 hearing: U.S. Supreme Court may avoid broad ruling on gay marriage ban

Tuesday, March 26, 2013
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Updated: 8:15 p.m. EDT

WASHINGTON — The U.S. Supreme Court hinted that a broad ruling on gay marriage may not be coming any time soon, as justices appeared wary of a deeply divisive issue that has exploded over just the past decade.

The court turns its attention Wednesday to a case that challenges the federal law defining marriage as being between a man and a woman. On Tuesday, the nine justices considered California’s ban on same-sex marriage, which a federal appeals court overturned.

It’s the Supreme Court’s first major examination of gay rights in a decade.

Related: Audio and transcript here.

From left, attorney David Boies, plaintiffs, Sandy Stier, with partner Kris Perry, from Berkeley, Calif., Jeff Zarrillo, with partner Paul Katami from Burbank, Calif., and their attorney Theodore Olson leave the Supreme Court in Washington on Tuesday.
Photo: Pablo Martinez Monsivais, AP

The arguments in both cases have drawn intense national interest as momentum rapidly swings toward public acceptance of the same-sex marriage. No state even recognized same-sex marriage before 2003 when Massachusetts’ highest court ruled it was unconstitutional to bar same-sex couples from marrying in the state .

Dozens of people lined up for days for the chance to observe what they expected to be historic arguments, and thousands marched outside the Supreme Court building Tuesday, loudly supporting one side or the other.

Supporters of gay marriage hope for a broad ruling from the court that would erase bans nationwide for the estimated 9 million Americans who are gay, lesbian, bisexual or transgender. Even if the court keeps its ruling narrow and allows the appeals court ruling on California to stand, gay marriage would become legal again in the most populous state in the country, one that has set the pace on other social issues.

President Barack Obama has been increasingly vocal in support of gay rights after coming out on the issue during last year’s presidential race, and his administration has weighed in on behalf of the two same-sex couples who brought the California case.

And former President Bill Clinton, who signed into the law the Defense of Marriage Act that is the focus of arguments Wednesday, now speaks publicly against it. The law forb ids nationwide recognition of same-sex marriages and bars married gay and lesbian couples from receiving federal benefits. Clinton’s wife, potential 2016 presidential candidate Hillary Rodham Clinton, recently came out in support of gay marriage.

But justices on the conservative-leaning Supreme Court hinted Tuesday that they would not make a broad ruling on so new an issue. The court is not expected to rule before late June.

Justice Samuel Alito appeared to advocate a cautious approach.

“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?” Alito asked.

Justice Anthony Kennedy, the potentially decisive “swing” vote on a closely divided court, suggested that the court could dismiss the case with no ruling at all.

Public opinion on the topic of gay and lesbian rights has undergone one of the most rapid evolutions in recent U.S. political history. Acco rding 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 decade ago, just 33 percent were in favor and 58 percent were opposed.

Nine states and Washington, D.C., allow same-sex marriage, while 12 others recognize “civil unions” or “domestic partnerships” that grant the same benefits without full rights of marriage. The other states ban gay marriage in their constitutions.

Supporters of same-sex marriage hope for a ruling that will be the 21st century equivalent of the Supreme Court’s 1967 decision in Loving v. Virginia that struck down state bans on interracial marriage.

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 the court similarly ventured into the unknown when it struck down bans on interracial mar riage.

Kennedy noted that other countries had had interracial marriages for hundreds of years.

Justice Sonia Sotomayor asked, “Outside of the marriage context, can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them?”

“I cannot,” replied Charles Cooper, lawyer for the defenders of California’s gay marriage ban.

Chief Justice John Roberts said it seemed supporters of gay marriage were trying to change the meaning of the word “marriage” by including same-sex couples.

That idea brought thousands of gay marriage opponents to march outside the Supreme Court on Tuesday, waving signs including “Every child deserves a mom & dad” and “Vote for holy matrimony.”

“If anyone can get married then marriage has no meaning,” said Austin Ruse, 56, who asked whether a man, for example, should be allowed to marry his adult son.

Thousands more who supported gay marriage held signs that read “Marriage is a constitutional right.” One man in devil horns danced in pink heels and a rainbow tutu, holding a sign that said “I bet hell is fabulous.”

Gahan Kelley and Bonnie Nemeth, both 69, had matching signs with their California marriage license on one side and a picture of their wedding ceremony on the other. The couple married during the 142 days when it was legal in the state.

“This decision can change our lives tremendously,” Kelley said.

The case before the high court came together four years ago when two couples, Kris Perry and Sandy Stier of Berkeley and Paul Katami and Jeff Zarrillo of Burbank, agreed to be the named plaintiffs and become the public faces of a well-funded, high-profile effort to challenge the voter-approved same-sex marriage ban known as Proposition 8 in the courts.

The fight began in 2004 when San Francisco Mayor Gavin Newsom ordered city officials to issue marriage licenses. Six months later, the state Supreme Court invalidated the same-sex unions. Less than four years later, however, the same state court overturned California’s prohibition on same-sex unions. Then, in the same election that put Obama in the White House in 2008, California voters approved Proposition 8, undoing the court ruling and defining marriage as the union of a man and a woman.

The ballot measure halted same-sex unions in California. Roughly 18,000 couples were wed in the nearly five months that same-sex marriage was legal and those marriages remain valid in California

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 the do same Wednesday.

Tuesday’s audio can be found here. The last time the court provided same-day audio recordings was during its consideration of Obama’s health care reform law.

Developing story, check back for updates.

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