Reluctant justices hear arguments over same-sex marriage

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WASHINGTON (CNN) — As partisans argued pointedly over same-sex marriage outside the U.S. Supreme Court building, either hoping for or dreading a landmark decision, justices inside seemed reluctant to extend a sweeping constitutional right for gays and lesbian to wed in all 50 states.

Same Sex MarriageIn the first of two days of hearings on cases that have the potential to fundamentally alter how American law treats marriage, Justice Anthony Kennedy — considered the likely deciding vote on the divided court — questioned whether the case even belonged before the court.

“This was a deeply divided Supreme Court, and a court that seemed almost to be groping for an answer here,” said CNN Senior Legal Analyst Jeffrey Toobin, who watched the arguments.

On the point of allowing same-sex marriage in California, Justice Elena Kagan, a liberal member of the court, asked, “What harm is there to the institution of marriage?”

But more conservative members of the court took a go-slow approach. Justice Samuel Alito said the law on same-sex marriage is too new.

“There isn’t a lot of data on its effect” on children and the institution of marriage, he said.

The 80 minutes of arguments Tuesday on California’s Proposition 8 ban on same-sex marriages will be followed Wednesday by arguments on the federal Defense of Marriage Act, a 1996 law that defines marriage as between a man and a woman.

Supporters of same-sex marriage rallied outside the Supreme Court, hoping justices would reach for a broad ruling that would strike down bans nationwide.

“We are not asking for anything more than our neighbors, friends and family, but certainly expect no less,” said Todd Bluntworth, who spoke with his husband and their two children to a crowd of supporters hoping for a historic ruling from the Supreme Court striking down laws banning same-sex marriage.

But opponents urged the court to keep out of the issue and leave the decision to states.

“If you want to get married, go to one of the states that allows gay marriage,” said Carl Boyd Jr., a conservative Nashville talk-show host. “Stop trying to force your agenda down our throats. Quit trying to bully the American people with the homosexual agenda.”

Some demonstrators carried sign reading “Kids do best with a mom & dad.”

Tuesday’s hearing involved California’s Proposition 8, which bans same-sex marriage.

Voters approved the proposal 52% to 48% in November 2008, less than six months after the state Supreme Court ruled that marriage is a fundamental right that must be extended to same-sex couples.

The overriding legal question is whether the 14th Amendment guarantee of equal protection under the law prevents states from defining marriage as California has.

Two of the key plaintiffs are Paul Katami and Jeff Zarrillo, a Burbank, California, couple who want to marry but can’t because of Proposition 8. They say the state is discriminating against them for their sexuality.

“Stigma is stigma. And discrimination is discrimination,” Katami told CNN.

“I think that any time there’s discrimination in the country, it needs to be addressed and it needs to be taken care of,” he said. “And that’s why we feel that anytime in our history when there’s been racial discrimination or sexual discrimination of orientation, or in particular marriage at this point, that we always bend toward the arch of equality.”

Patchwork state laws

If the court decides in their favor, it would mark a historic shift in how the law treats marriage, striking down laws across the country banning same-sex marriage and matching an apparent cultural shift toward acceptance of same-sex couples.

Or the court could leave the current patchwork of state laws in place, choosing to let state legislatures and state courts sort it all out.

Forty-one states now forbid same-sex marriage, although nine of them allow civil partnerships. Nine other states allow same-sex marriage, and about 120,000 same-sex couples have gotten married, according to estimates.

California’s bans seem to run counter to polls that show rising support overall for same-sex marriage. A CNN/ORC International poll released Monday found that 53% of Americans now support same-sex marriage, up from 40% in 2007.

California Attorney General Kamala Harris, who is arguing against Proposition 8, said voter-approved marriage bans “are simply unconstitutional.”

The Supreme Court has ruled more than a dozen times that marriage is a fundamental right, “and as it relates to a fundamental right, the court will hold that under the highest level of scrutiny,” Harris said.

On Wednesday, justices will hear arguments in a separate case involving the federal Defense of Marriage Act, which, like the California law, defines marriage as between a man and a woman.

The law bars the federal government from recognizing state-sanctioned same-sex marriages. It prevents legally married gay and lesbian couples from getting federal benefits and privileges, like tax breaks and survivor benefits, that are extended to opposite-sex married couples.

No immediate decision

The court is unlikely to announce its decision until June.

But people could get a sense of which way the decision will go by listening to the questions posed by Justice Anthony Kennedy, said CNN senior legal analyst Jeffrey Toobin.

The court’s four liberal justices are likely to vote to overrule Proposition 8, he said. Four conservatives are likely to vote to keep it.

“The most likely person to give the fifth vote is Anthony Kennedy,” who previously authored two important gay rights decisions, Toobin said.

Partisans speak out

Same-sex marriage supporters say it’s time for the court to take a stand that puts all Americans on the same footing.

“This is about our equality,” Katami said. “This is about our freedom and our liberty. So we are not trying to topple marriage. We are not trying to redefine marriage. What we are trying to say is that equality is the backbone of our country.”

But supporters of Proposition 8 and DOMA say the Supreme Court should stay out of the issue and let voters decide what they want.

“Our most fundamental right in this country is the right to vote and the right to participate in the political process,” said Austin Nimocks of the Alliance Defending Freedom, a Christian advocacy group.

“We don’t need the Supreme Court to take that right away from Americans of good faith on both sides of this issue and impose its judicial solution,” Nimocks said. “We need to leave this debate to the democratic process, which is working.”

Political positions

The Obama administration has formally expressed support for same-sex marriage in California, weighing in on the case in a brief last month. Obama, whose views on the issue have changed over his political career to full support, said he would vote to strike down the state’s law if he sat on the court.

In what some have labeled the “nine-state strategy,” the Justice Department argument is expected to center on the idea that civil union and domestic partnership laws may themselves be unconstitutional and that those states should go all the way and grant same-sex couples full marriage rights.

Other prominent politicians have expressed timely opinions in recent weeks, indicating the importance of the matter in the social context of 21st century American politics.

Hillary Clinton, the former secretary of state and possible 2016 Democratic presidential candidate, recorded a video for a gay rights group indicating her support.

Republicans have described cracks appearing in their party’s long-held opposition to same-sex marriage.

“There is no putting this genie back in the bottle. It is undeniable. The shift is here and we’re not going back,” Republican strategist and CNN contributor Ana Navarro said Sunday.

One prominent Republican, Sen. Rob Portman of Ohio, endorsed that shift this month, two years after his son revealed to him that he is gay.

The case being heard Tuesday is Hollingsworth v. Perry (12-144), dealing with Proposition 8. And coming up Wednesday is U.S. v. Windsor (12-307), which deals with the DOMA issue.


  • Who are you fooling

    Don't be fooled by the homosexuals,

    There agenda is based on rights of a homosexuality ("key word, "sex").

    So do what you do, without pushing your dirty ways on the innocent children of the world. They are young and should stay young without an early start to sexuality. By forcing your elk on the masses, you have opened your doors from the bedroom and exposed your elk to the young children of the world.

    I am not filled with hate, I just want the less than 2 % of you to keep it in the bedroom and not corrupt the innocent children to your elk.

    It's all so very simple,

    Californian residents voted and said no to your sexual ways. Homosexuality is a "sexual" and choice, so choose to keep in in your own home and not push your sexual choice on our children.

    • ani

      ILK, not elk… Elk is an animal… if you are going to pretend to know enough about how someone should conduct their life, then you should at least learn how to spell.

  • Born this way

    That's funny, Heterosexual also has the word "sex" and "sexual" in it, but do you see yourself as pushing your "dirty ways" onto children?

    Every American should be afforded equal rights. Allowing same sex marriage will not hurt anyone, but instead will offer constitutional rights to EVERY American.

    There was a time (not so long ago) that interracial couples were not allowed to marry. How foolish does that seem to you now?

    It won't be long before the idea of making same sex marriage illegal looks very foolish also.

    This is not about sex. This is about allowing people to love who they love, and be protected under the law. A very good example, is the young men and women who are laying their lives down to fight for our country. Gay, or straight – they have just as much to lose. Do you think it's right that one soldier is able to protect his family (i.e. be sure they are taken care in the event of the unthinkable) where the gay soldier fighting beside him/her does not have that same right? They are both Americans, fighting for America.

    We are all created equally, and should all be given equal rights. The gay community is not going away, and not give up this fight.

    • Who are you fooling


      Nothing equal about same sex fool, I do not want the homosexual community to go away. Just keep it in the bedroom were it belongs! Many interracial couples fail because of what society deems it and so will same sex marriage ("see it all revolves around sex").

      So you hear me clearly!

      Be what you want to be, just do not push your agenda on the young and naïve children of the world!

      Sorry you think you were born that way, what every that is.

  • Born this way

    Keep it in the bedroom? Why, because you don't see us as people, just highly sexed creatures corrupting the youth of America?

    For crying out loud, we aren't out fornicating in the streets. LOL

    And, for the record, the definition of "sex" is not simply the act of sex. It also refers to GENDER. I don't know why you keep making it about the act of sex.

    • Who are you fooling


      You said it not me.

      Both of your statements are flawed. Ever heard of the pride parade (lots of disgusting highly sexed creatures all in one fuzzy little place) . No that was not intended to be a question.

      You are born into this world a single gender, not knowing what sex is. It's learned/taught by another person being of an ill mind.

      Well, not born that way. It seems your view is clearly skewed and full of holes.

      Good luck with your ill thoughts.

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