Supreme Court Justice Anthony Kennedy questioned Tuesday whether the issue of same-sex marriage was properly before the court, CNN’s Joe Johns said.
The Supreme Court is considering whether to overturn Proposition 8, the 2008 California initiative that defined marriage as being between a man and woman. Voters passed the measure in a hotly contested race five months after the state Supreme Court declared same-sex marriage legal.
In the aftermath of Prop. 8, it was overturned by the 9th Circuit Court of Appeals.
The Supreme Court is also expected to review the 1996 federal Defense of Marriage Act, which also defines marriage as between a man and woman. At issue is whether the federal act violates the equal-protection clause of the U.S. Constitution because it denies homosexual couples the same federal benefits as heterosexual couples.
For example, gay or lesbian members of the armed forces in long-term committed relationships receive a single person’s pay rate while their married straight counterparts are paid more. The distinction also affects access to base housing, health and survivor benefits.
Jim Garlow, senior pastor at Skyline Church in La Mesa, opposes marriage between anyone but a man and woman, while Pastor Darryl Kistler of Kensington Community Church supports same-sex unions, according to U-T San Diego.
Both men traveled to the nation’s capital to march in front of the high court and pray that the justices will reach the “right” conclusion, the newspaper reported.
Thousands of others from across the country were also expected to flock to the capital for the same reasons today.
“For those who call themselves Christian, the Bible begins with the marriage of a man and a woman and closes with the wedding of a bride and a groom,” Garlow said.
Kistler believes the high court will disagree.
“We are one human family,” Kistler said. “I truly believe the arc of justice is blowing in the direction of recognizing same-sex marriage as loving and just.”
The majority of states have banned same-sex marriage outright. Nine states and the District of Columbia allow it and New Jersey, New Mexico and Rhode Island prohibit the unions but do not have statutory or constitutional enforcement.
The justice to keep an eye on is Anthony Kennedy, who may be the crucial fifth vote on either side, says CNN’s senior legal analyst Jeffrey Toobin.
“I will be listening to what Justice Anthony Kennedy says,” Toobin said about the oral arguments. The four Democratic appointees — Justices Ginsburg, Breyer, Sotomayor and Kagan — will likely all vote for marriage equality.
“The most likely person to give the fifth vote is Anthony Kennedy,” Toobin said.
Toobin likened the same-sex marriage argument to Loving v. Virginia, a landmark civil rights decision by the Supreme Court in 1967 that deemed laws prohibiting interracial marriages unconstitutional.
Supreme Court justices this morning will launch an epic dialogue when they hear oral arguments in the first of two appeals to state and federal laws restricting same-sex marriage.
The first round today will deal with an appeal of California’s Proposition 8, which defines marriage as between a man and a woman. The second round, scheduled for tomorrow, will tackle the 1996 federal Defense of Marriage Act (DOMA) and a constitutional appeal over same-sex marriage and “equal protection.”
The arguments will start at 7 a.m., but don’t expect a decision until at least June.