Justices as split as rest of the country on same-sex marriage rights

WASHINGTON — As the U.S. Supreme Court last week weighed its many options in deciding the historic legal battle over gay marriage, the justices repeatedly revealed they are as divided as the rest of the country on when — and whether — to end the furor and give gay and lesbian couples the right to clutch a marriage license.

Through their rapid-fire questioning, most of the justices sprinkled tantalizing clues on where they stand on gay marriage. These ranged from the obvious, such as Justice Ruth Bader Ginsburg’s remark that the federal ban on same-sex marriage benefits amounts to “skim milk marriage” for legally married gay spouses, to the elusive, notably Justice Anthony Kennedy, the closely watched swing vote who hinted at concerns on both sides of the issue.

So what does that mean to the fate of Proposition 8, California’s voter-approved gay marriage ban, and the 1996 federal Defense of Marriage Act, which denies benefits to same-sex couples? The court must decide the two cases by the end of its term in June.

The consensus among legal experts is the court leans toward invalidating the federal law, perhaps because it interferes with states’ traditional role in marriage laws by denying benefits to same-sex couples legally married in states that permit gay nuptials. And it appears inclined to avoid the main issue in the Proposition 8 case by finding the measure’s sponsors do not have a legal right to defend the law, a procedural result that may leave lower court rulings intact and allow gay marriages in California.

But some of the justices seem ready to move quicker on a state’s right to outlaw gay marriage. Both Elena Kagan and Stephen Breyer appeared puzzled by gay marriage foes’ assertion that allowing gay couples to wed would harm the institution of marriage, and that traditional heterosexual marriage must be preserved for procreation.

“What harm to the institution of marriage or to opposite-sex couples, how does this cause and effect work?” Kagan asked Proposition 8 lawyer Charles Cooper.

Breyer was one of the justices questioning the procreation argument. “What precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile couples of different sexes to marry would not?” he asked.

But several of the conservative justices appeared unlikely to embrace gay marriage rights. Chief Justice John Roberts told Theodore Olson, attorney for same-sex couples, that “same-sex couples (in California) have every other right, it’s just about the label,” an apparent attempt to downplay the impact of the voters’ decision to limit marriage to heterosexual couples.

And he questioned the premise that laws such as Proposition 8 are motivated by discrimination, as opposed to legitimate concerns about preserving a tradition.

“When the institution of marriage developed historically, people didn’t get around and say let’s have this institution, but let’s keep out homosexuals,” Roberts said. “The institution developed to serve purposes that, by their nature, didn’t include homosexual couples.”

Justice Samuel Alito also seemed disinclined to move too fast on gay marriage, stressing it is a new concept that should be tested for its impact on society. “Traditional marriage has been around for thousands of years. Same-sex marriage is very new,” he said to U.S. Solicitor General Donald Verrilli. “But 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?”

Kennedy, meanwhile, said enough on gay marriage rights to give both sides of the debate hope.

“There is substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more,” he said. But, he continued, California has 40,000 children living with same-sex couples who “want their parents to have full recognition and full status. The voice of these children is important in this case.”

Kennedy, along with many of the other justices, seemed inclined to rely on a states’ rights argument to strike down the federal law, which already has been declared unconstitutional in lower courts because it denies benefits such as Social Security and tax status to legally married same-sex couples. The justices appeared more divided over how backing states’ rights to set marriage laws would apply to the rights of states such as California to ban gay marriage.

One legal expert noted a see-saw movement between state and federal rights.

The court’s gay marriage “supporters want to overturn state laws that ban same-sex marriage but want the federal government to respect state laws that allow same-sex marriage,” said Julie Nice, a University of San Francisco law professor. “Opponents want to uphold state laws that ban same-sex marriage but want to disregard state laws that allow same-sex marriage. In other words, both sides of the dispute are more committed to their positions on same-sex marriage than they are to federalism.”

Whatever the court decides, it was clear the justices are well aware of outside political currents on gay marriage. Addressing the lawyer for the 83-year-old New York woman challenging the federal law, Roberts made it a point to say so.

“As far as I can tell,” the chief justice said, “political figures are falling over themselves to endorse your side of the case.”

Legal experts such as Pepperdine University’s Douglas Kmiec say those political events might push the court to “be happy to take the exit route.” But others hope all those remarks from the justices translate into a firm decision.

“There are people waiting all over the country on this very issue,” said Karen Golinski, a San Francisco woman who has challenged the federal law with her spouse and attended Wednesday’s arguments. “We’re getting closer to a day when we’re going to get resolution to this issue.”