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Thursday, March 28, 2013

Justices Say Time May Be Wrong for Gay Marriage Case

Supporters of gay marriage arrived to witness an event that could precipitate historic changes in how same-sex couples are treated under the law.
Justice Sonia Sotomayor seemed to share that concern. “If the issue is letting the states experiment and letting the society have more time to figure out its direction,” she said, “why is taking a case now the answer?”
Those justices and others seemed driven to that conclusion by an argument in which no attractive middle ground emerged on the substance of the question before them: whether voters in California were entitled to enact Proposition 8, which overturned a State Supreme Court decision allowing same-sex marriage.
Justices who appeared sympathetic to same-sex marriage indicated that there was no principled way to issue a ruling that could apply only in California or only in the nine states that have robust civil union or domestic partnership laws but withhold the word “marriage.”
That appeared to leave the court with an all-or-nothing choice on the merits: either a ruling that would require same-sex marriage in all 50 states or one that would say that all states may do as they wish. Neither choice seemed attractive to a majority of the justices.
Five members of the court asked questions indicating that they might vote to dismiss the case on the threshold issue that supporters of Proposition 8 lacked standing to appeal a lower court’s decision. Chief Justice John G. Roberts Jr., whose questions on the merits indicated discomfort with requiring states to allow same-sex marriage, seemed particularly interested in the standing issue.
Justice Kennedy seemed more open to the possibility that the proponents of Proposition 8 had standing, but he twice asked lawyers why the court should not dismiss the case outright. When the justices have second thoughts about agreeing to hear a case, they sometimes dismiss it as “improvidently granted.”
Questions from the justices do not always reliably forecast votes, of course, and many of the justices also indicated their views of the central issue presented in the case.
When Justice Kennedy turned to the merits of the case, he voiced sympathy for the children of gay couples. “There are some 40,000 children in California,” he said, who “live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case.”
But Justice Kennedy said he was uncertain about the consequences for society of allowing same-sex marriage. “We have five years of information to weigh against 2,000 years of history or more,” he said, referring to the long history of traditional marriage and the brief experience of allowing gay men and lesbians to marry in some states.
Justice Samuel A. Alito Jr. echoed the thought and said the court should not move too fast. “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?” he said.
Many of the questions directed to Charles J. Cooper, a lawyer for opponents of same-sex marriage, concerned whether there was any good reason to exclude same-sex couples from the institution.
Mr. Cooper counseled caution. “It is an agonizingly difficult, for many people, political question,” he said. “We would submit to you that that question is properly decided by the people themselves.”
Justice Elena Kagan asked him how letting gay couples marry harmed traditional marriages. “How does this cause and effect work?” she asked.
Mr. Cooper responded that “it will refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples.” The key to marriage, he said, is procreation.
That did not seem to satisfy several of the justices.
Justice Stephen G. Breyer asked Mr. Cooper about sterile opposite-sex couples. “There are lots of people who get married who can’t have children,” he said.

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