US high court could avoid ruling on gay marriage

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Associated Press

Posted on March 26, 2013 at 4:33 PM

WASHINGTON (AP) — The U.S. Supreme Court suggested Tuesday it could find a way out of the closely watched case over California's ban on same-sex marriage without issuing a major national ruling on whether gays have a right to marry. One wary justice described the issue as newer than cellphones and the Internet.

This week's arguments in two gay marriage cases have drawn intense national interest as momentum rapidly swings toward acceptance of the issue among Americans. No state even recognized same-sex unions before 2003. Dozens of people lined up for days outside the court to get a chance to observe what they expected to be a historic event.

The court's first major examination of gay rights in 10 years continues Wednesday, when it will hear the first challenge it has accepted to the 1996 federal Defense of Marriage Act, which defines marriage as a union between a man and a woman. Former President Bill Clinton signed it into law but has recently spoken publicly against it. The law forbids nationwide recognition of same-sex marriages and bars married gay and lesbian couples from receiving federal benefits.

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.

There is no guarantee the conservative-leaning Supreme Court will rule in a similar direction. The case could produce a number of rulings, ranging from upholding the California ban to striking it down in a fashion that would erase such bans nationwide. The court is not expected to rule before late June.

As arguments began, the sidewalk outside was packed with demonstrators on both sides of the debate.

Opponents of gay marriage have expressed confidence that the justices will rule their way, and even some gay rights activists have worried that the court has taken up the issue too soon. Supporters of same-sex marriage hope for a ruling that will be the 21st century equivalent of the court's 1967 decision in Loving v. Virginia that struck down state bans on interracial marriage.

Several justices, including some liberals who seemed open to gay marriage, raised doubts Tuesday during a riveting 80-minute argument that the case was properly before them. And 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.

Such an outcome would almost certainly allow gay marriages to resume in California but would have no impact elsewhere. The court is considering a legal challenge to Proposition 8, the gay marriage ban that California voters approved five years ago. A federal appeals court struck down the ban.

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? I mean, we do not have the ability to see the future," Alito said.

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 in 1967 when it struck down bans on interracial marriage in 16 states.

Kennedy challenged the accuracy of that comment by noting that other countries had had interracial marriages for hundreds of years.

Chief Justice John Roberts told Olson that it seemed supporters of gay marriage were trying to change the meaning of the word "marriage" by including same-sex couples.

There was no majority apparent for any particular outcome.

Charles Cooper, representing the people who helped get California's gay marriage ban on the ballot, ran into resistance over his argument that the court should uphold the ban as a valid expression of the people's will and let the vigorous political debate over gay marriage continue.

Kennedy suggested that Cooper's argument did not take account of the estimated 40,000 children who have same-sex parents. "The voices of these children are important, don't you think?" Kennedy said.

Outside the court, people who favor legalizing same-sex marriage carried pictures of gay weddings and families and held signs that read "Marriage is a constitutional right." They waved U.S. and rainbow flags, and one man in devil horns danced in pink heels and a rainbow tutu.

Opponents, meanwhile, marched in front of the court, holding signs including "Every child deserves a mom & dad" and "Vote for holy matrimony."

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

"This decision can change our lives tremendously," Kelley said.

Public opinion on the topic of gay and lesbian rights in the United States has undergone one of the most rapid evolutions in recent political history. According 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 the district of Washington allow same-sex marriage, while 12 others recognize "civil unions" or "domestic partnerships" that grant the same benefits without full rights of marriage. The 29 other states ban gay marriage in their constitutions.

As more gay and lesbian couples are in public view, Americans can see "there are real families who are impacted. People have seen there has been no negative impact (from gay marriage). It's only the exclusion from marriage that has a negative impact," said Jennifer Levi, professor of law at Western New England University.

The case before the high court came together four years ago when the two couples, Kris Perry and Sandy Stier, and Paul Katami and Jeff Zarrillo, agreed to be the named plaintiffs and become the public faces of a well-funded, high-profile effort to challenge 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, 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.

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 at: http://tinyurl.com/dxefy2a. The last time the court provided same-day audio recordings was during its consideration of Obama's health care law.

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Associated Press writers Mark Sherman and Jessico Gresko contributed.

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