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History in the high court

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

Tuesday, March 26, 2013

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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34 more reader comments:

  1. They can’t avoid us forever!!

    Posted on Tuesday, March 26, 2013 at 9:08am
  2. Why did they even bother to hear the case, then? They turn down hundreds of cases a year. WTF, SCOTUS?

    Posted on Tuesday, March 26, 2013 at 9:10am
  3. to avoid it would be cowardly and unjustified…if your comfortable with your stance…then make one…we aren’t going anywhere and we will have equal rights…the majority of americans stand with us! <3 always wins

    Posted on Tuesday, March 26, 2013 at 9:10am
  4. Why are they dodging this?

    Posted on Tuesday, March 26, 2013 at 9:10am
  5. The Supreme Court will get so much shit thrown at them if they do this. They’re morons.

    Posted on Tuesday, March 26, 2013 at 9:10am
  6. right i for one and my friends are not going any where we are here to stay

    Posted on Tuesday, March 26, 2013 at 9:11am
  7. Come on, SCOTUS… don’t mess up on this, OK?

    Posted on Tuesday, March 26, 2013 at 9:12am
  8. The fight for rights will never stop!! Keep this in mind! :)

    Posted on Tuesday, March 26, 2013 at 9:13am
  9. Ill fight till my last breath

    Posted on Tuesday, March 26, 2013 at 9:13am
  10. That would be a cowardly and backwards move. I would lose all respect for the Supreme Court

    Posted on Tuesday, March 26, 2013 at 9:13am
  11. Interesting..

    Posted on Tuesday, March 26, 2013 at 9:15am
  12. Looks like a repeat of the ruling in Naim v Naim, 1957.

    Posted on Tuesday, March 26, 2013 at 9:16am
  13. of course they did…they always do.

    Posted on Tuesday, March 26, 2013 at 9:17am
  14. Just. Sad.

    Posted on Tuesday, March 26, 2013 at 9:17am
  15. To our government: Love is about the heart not about the individuals parts. Let one love and be with who they choose and back off.
    Maybe they should remove “till death do you part” cause clearly the way divorce is occurring so often, that is a sin, in gods eyes. It’s a hypocritical statement to say those words .

    Posted on Tuesday, March 26, 2013 at 9:20am
  16. COWARDS!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

    Posted on Tuesday, March 26, 2013 at 9:20am
  17. We knew this was a possibility……don’t get scared, NOW…….

    Posted on Tuesday, March 26, 2013 at 9:21am
  18. Come ON!!! you assholes why dont you just fucking pass it stop fucking ignorning us, we will bring your ass down, fight wont stop!!! equality for all is coming soon whether you like it or not, dont be sad guys, its just the begining

    Posted on Tuesday, March 26, 2013 at 9:24am
  19. Weak! They need to rule against discrimination, plain, simple, period! Marriage laws need to be across the land, from sea to shining sea!

    Posted on Tuesday, March 26, 2013 at 9:25am
  20. Crock of shit. Get the job done FFS

    Posted on Tuesday, March 26, 2013 at 9:25am
  21. anyone know of any rallies happening today in los angeles?

    Posted on Tuesday, March 26, 2013 at 9:31am
  22. Sadly , divorce will keep occurring and more and more gays, lesbians , transgender and bi sexual will come step up to the matter at hand. We will not be silenced , so just give in and give Everyone Equal rights..
    Keep in mind, if loving the same sex is such a sin , than think of all the sin done by man everyday ( including members of congress/courts and the government) and how they don’t think about that fact. Cheating on a spouse is one, divorce would be another. Just too many to list. Let all live their lives and step aside cause its going to only grow..

    Posted on Tuesday, March 26, 2013 at 9:33am
  23. Posted on Tuesday, March 26, 2013 at 9:48am
  24. Just pretending it dosen’t exist or ignorring it WON’T let it go away!!!

    Posted on Tuesday, March 26, 2013 at 9:56am
  25. charli crankin’ em out

    Posted on Tuesday, March 26, 2013 at 10:02am
  26. instead of avoiding it, get it done now and rule on it yes by dropping this case the federal appeals court decision to repealing the ban would take effect and California will have marriage equality but it wouldnt solve the issue of the other states that has a ban so justices rule it on now damn u

    Posted on Tuesday, March 26, 2013 at 10:05am
  27. We all knew this was an option, but I fervently hope that the Court does not take this gutless road.

    Posted on Tuesday, March 26, 2013 at 10:21am
  28. The majority of the comments I am reading here so far are anti-gay, defamatory, bigoted, prejudicial remarks, discriminatory statements that make no sense at all from a progressive point of view. An “all inclusive” concept means EQUALITY FOR ALL American citizens under the law. What is the basis of this often vehement animosity against gay people? How on earth would a gay marriage impact or even change heterosexual marriages? Why are people so afraid of gay marriage? Gays are American citizens too and should be entitled to the same marital rights that any other heterosexual marriage is entitled too under the law. Why should this right be EXCLUSIVE to ONLY BETWEEN A MAN AND A WOMEN? From what I am observing, this so-call RIGHT is not making heterosexual marriage any more secure, stable, enduring. I know of gay partnerships that are enduring close to 60 years or more. Meanwhile the divorce rate for man/woman marriage is SKY HIGH. Furthermore, when it comes to raising children, FACTS are showing children growing up in a gay household show no adverse impact on their lives any more than kids growing up in a man/women household; they virtually remain the same. I conclude that arguments presented on behalf of het marriage are solely based in some archaic, outdated religious ideology, which is purely FICTIONAL anyway, and make very little sense in a modern world that should include ALL people witn EQUALITY and JUSTICE for ALL.

    Posted on Tuesday, March 26, 2013 at 11:08am
  29. Sebastian, they believe in an imaginary god that hates us so much that he will stomp down here from the geavans and destroy everything if we are allowed to be treated as equals with them. It is beyond ridiculous. Religion is a mental delusion. Not all religious folk are like thatind you. Just the ones that hate and fear us.

    Posted on Tuesday, March 26, 2013 at 11:35am
  30. Heavans, not geavans.

    Posted on Tuesday, March 26, 2013 at 11:35am
  31. “Not all religious folk are like that mind you”. Usually I can type better than this.

    Posted on Tuesday, March 26, 2013 at 11:36am
  32. The supreme court just like congress does not want to do their job and do whats right!

    Posted on Tuesday, March 26, 2013 at 11:41am
  33. We can also choose to ignore the US Government and start staging major walkouts. Society doesn’t realize how many of us LGBT there are until their wedding is walked out on; their diner is walked out on; their haircut is walked out on; the long lines at the bank are walked out on; etc. etc. Enough is enough. Liberty and Justice for ALL!

    Posted on Tuesday, March 26, 2013 at 12:11pm
  34. hey everybody at LGBTQ, the Lord Jesus wants to save you from the wages of sin . the only equality you will ever have is the one offered to you at the foot of the cross for the forgiveness of sin. John 3:16 For God so loved the world, that he gave his only begotten Son, that whosoever believeth in him should not perish, but have everlasting life.

    Posted on Tuesday, March 26, 2013 at 12:21pm