Supreme Court justices may duck decision on same sex marriage

A conflicted Supreme Court on Tuesday suggested it will not issue a decision declaring gay marriage to be a constitutional right.

During oral arguments in a case on California’s ban on same-sex marriage, the justices appeared unlikely to revive the ban struck down by an appeals court.

At the same time, they seemed equally unlikely to issue a broad ruling that would dramatically expand the ability of same-sex couples to marry in other states.

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Justice Anthony Kennedy, who typically casts the court’s swing vote, questioned whether the court should rule at all and whether it made the right call in agreeing to hear the case.

“The problem with the case is that 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,” Kennedy said. “I just wonder if the case was properly granted.”

Justice Sonia Sotomayor added, “If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?”

Oral arguments are often an unreliable guide to how the justices will ultimately rule. Scores of pundits incorrectly predicted that the court would strike down President Obama’s healthcare law last year, based on the tenor of the arguments.

Yet there was no mistaking the justices’ hesitancy Tuesday about issuing a major ruling that could roil an already fast-moving political debate.

Polls show a majority of voters back same-sex marriage, with support higher among younger people. Just a few years ago, a majority of voters opposed gay marriage.

Even politicians in recent weeks have had trouble keeping up with the debate.

On Tuesday, several senators announced their support for gay marriage. They joined Sen. Rob Portman (Ohio), who became the first Republican senator to support gay marriage earlier this month, and former Secretary of State Hillary Clinton.

Clinton’s endorsement last week was particularly important, as it suggests Democratic politicians think it is a disadvantage not to support same-sex marriage.

Tuesday was the first day the Supreme Court has considered the topic. It will hear a second day of arguments on the issue Wednesday, when it considers whether to strike down the federal Defense of Marriage Act (DOMA).

Throngs of protesters and activists gathered outside the court Tuesday morning. Some had camped out for days in cold, rainy weather just to secure a spot inside the Supreme Court as the justices took up the challenge to California’s law, known as Proposition 8.

Charles Cooper, a former Reagan administration lawyer who argued in favor of Proposition 8 on Tuesday, said states must have the ability to retain a “traditional” definition of marriage as a union between a man and a woman.

Marriage is designed primarily to encourage responsible procreation, Cooper argued, and only opposite-sex couples can have children.

Justice Elena Kagan asked Cooper whether a state would have the right to ban marriages between two people who are both older than 55 — when neither is likely to be fertile.

Cooper struggled with the question and hesitated to concede that an older couple would not be able to have children.

Even if same-sex couples can’t further the goal of promoting procreation, Kagan said, allowing them to marry doesn’t seem to get in the way of that goal, either. Opposite-sex couples would still be free to marry and have children.

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“What harm do you see happening … to the institution of marriage or to opposite-sex couples?” Kagan asked. “How does this cause and effect work?”

Justices Stephen Breyer and Ruth Bader Ginsburg, who along with Kagan and Sotomayor are the court’s liberal wing, were also skeptical of the idea that marriage exists to encourage couples to have children. Infertile couples are allowed to marry, they noted, as are convicted felons with no chance of parole.

“I mean, there are lots of people who get married who can’t have children,” Breyer said.

Furthermore, California allows same-sex couples to adopt children. So even if other states might not have decided whether they’re OK with same-sex parenting, couples in California still have that right with or without Proposition 8.

“There are some 40,000 children in California ... that live with same-sex parents, and they want their parents to have full recognition and full status,” Kennedy said. “The voice of those children is important in this case, don’t you think?”

That line of questioning comforted Proposition 8’s opponents — led by Ted Olson and David Boies, the two lawyers on opposite sides of the Supreme Court case that decided the 2000 presidential election, who have now teamed up to argue that the Constitution protects same-sex marriage.

“I think the most remarkable thing that happened in there was, there was no attempt to defend the ban on gay and lesbian marriage,” Boies said after the arguments. “There was no indication of any harm. All that was said in there was that this important constitutional right ought to be decided at the state level.”

Justice Samuel Alito questioned whether it's too soon for the court to pass judgment on same-sex marriage.

"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?" he asked. "I mean, we do not have the ability to see the future."

The most heated exchange came when Justice Antonin Scalia -- who believes the meaning of the Constitution does not evolve over time -- asked when the Constitution began ensuring equal marriage rights.

"I'm curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the 14th Amendment was adopted?" he asked.

This story was first posted at 11:46 a.m. and last updated at 7:38 p.m.