Supreme Court hints that it won't issue sweeping ruling on same-sex marriage
In a historic argument on a challenge to state laws that limit marriage to heterosexual couples, the Supreme Court indicated Tuesday that it might be hesitant to strike down such laws.
Following the oral argument, Pete Williams of NBC News reported that it seemed “quite obvious that the U.S. Supreme Court is not prepared to issue any kind of sweeping ruling” declaring that same-sex couples have a constitutional right to marry.
Williams said there seemed to be “very little eagerness” from any of the justices to “embrace that broad a ruling.”
At issue in Tuesday’s argument was California’s Proposition 8, the state constitutional amendment enacted by voters in 2008 that limits marriage to one-man, one-woman couples. Williams said that both the liberal and the conservative justices seemed wary of issuing a decision that would apply to any state outside of California.
It is possible that a majority of the justices could support a limited ruling that applies only to California – or one that applies only to California and several other states which allow domestic partnerships that are almost identical to marriage in all but name.
“Several members of the court seemed to be struggling to find a way to limit this case only to California and one way to do that might be simply to say that the Proposition 8 proponents had no legal power to bring this (suit) in the first place, and I think, frankly for the advocates of same-sex marriage, my guess is that’s the best they could hope for,” Williams said.
Court observers caution that one should not read too much into the questions the justices ask during oral argument since they don’t necessarily reflect how any particular justice would ultimately vote in the case.
Although the justices are deciding a constitutional question – whether the Equal Protection Clause in the Fourteenth Amendment includes a right for same-sex couples to marry – the argument is taking place as polls indicate that public opinion is shifting toward acceptance of same-sex marriage.
More elected officials, such as Sen. Claire McCaskill, D-Mo., on Sunday and Sen. Rob Portman, R-Ohio, last week, are personally endorsing same-sex marriage, but it remains to be seen whether the justices will be influenced by public opinion.
In recent years, nine states, either through court rulings, legislation, or ballot measures, have redefined marriage to include same-sex couples. But most states have laws or constitutional provisions that define marriage as the union of one man and one woman.
On Wednesday the court will hear oral arguments in a related case: a challenge to one section of the 1996 Defense of Marriage Act, which for purposes of federal regulations and benefits, defines marriage as “a legal union between one man and one woman as husband and wife.”
Many court observers believe the pivotal swing vote in the marriage cases will be that of Justice Anthony Kennedy, who wrote the majority opinion in the court’s 2003 decision in Lawrence v. Texas which struck down state sodomy laws.
Proposition 8 was enacted with 52 percent of the vote less than six months after the California Supreme Court ruled that the state’s previous ban on same-sex marriages violated the state constitution. More than 18,000 marriage licenses were issued to same-sex couples in California before Proposition 8 was adopted.
Those supporting Proposition 8, four of the original five sponsors who put the measure on the California ballot, told the high court in their brief that the Constitution doesn’t mandate the traditional definition of marriage – “but neither does our Constitution condemn it.” The Equal Protection Clause does not include a right for same-sex couples to marry, they said. The justices “should allow the public debate regarding marriage to continue through the democratic process, both in California and throughout the Nation.”
In their challenge to the California law, the plaintiffs said they agree with supporters of Proposition 8 “that marriage is a unique, venerable and essential institution. They simply want to be a part of it – to experience all the benefits the Court has described (in prior rulings) and the societal acceptance and approval that accompanies the status of being ‘married.’”
They say supporters of traditional marriage “have never identified a single harm that they, or anyone else, would suffer as a result of allowing gay men and lesbians to marry.” Proposition 8, they argue, was enacted to stigmatize and harm gays and lesbians, not to serve any rational purpose.
Those challenging the California law – represented in court Tuesday by Theodore Olson, who served as solicitor general of the United States under President George W. Bush – lean heavily in their brief on Kennedy’s decision in Lawrence v. Texas.
That case involved private conduct that police had to enter a private residence to discover. In contrast, Tuesday’s case addressed marriage, which is not only public but requires legal acknowledgement and acceptance by other citizens.
But in his decision in Lawrence v. Texas, Kennedy used language that might help lay a foundation for a ruling in favor of same-sex couples.
He referred to marriage and child-rearing, declaring, “Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do."
Charles Cooper, who served in the Reagan administration as assistant attorney general in charge of the Office of Legal Counsel, argued the case Tuesday for supporters of Proposition 8.
Solicitor General Donald Verrilli argued for the Obama administration, as a friend of the court, in opposition to Proposition 8.