Protesters against gay marriage shout slogans in front of the U.S. Supreme Court in Washington, March 26, 2013. Two members of the U.S. Supreme Court, both viewed as potential swing votes on the right of gay couples to marry, raised doubts about California's gay marriage ban on Tuesday as they questioned a lawyer defending the ban. (Jonathan Ernst/Reuters)
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 (March 26) 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 (March 27), 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.
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SOURCE: Baptist Press