After more than two decades of legal battles, rallies, protests and campaigns, proponents of gay marriage say they are increasingly confident as they await their day in court.
The Supreme Court on Tuesday begins two days of oral arguments that will at heart determine if efforts at the state and federal level to block the recognition of same-sex marriages can pass constitutional muster. With opinion polls moving their way and with nine states and the District of Columbia now recognizing gay unions, same-sex marriage advocates say momentum is clearly on their side.
“I think the direction of the country is clear,” Theodore Boutrous, an attorney with the American Foundation for Equal Rights, which is representing two California gay couples in Hollingsworth v. Perry, one of the two cases that come before the high court this week. The case centers on whether the state’s voter-approved Proposition 8 against gay marriage should stand.
Not only is there growing support for gay marriage, Mr. Boutrous said — citing the American Academy of Pediatrics’ new support for gay marriage as being “in the best interest” of children announced last week — but the legal arguments “directly support and point in one direction, and that’s that Proposition 8 must be struck down.”
While the Supreme Court justices could opt for a more narrowly crafted decision, the goal is full legalization of gay marriage throughout America, Mr. Boutrous and other marriage-equality supporters said in a recent briefing with reporters.
Supporters of traditional marriage, however, say the high court can — and should — uphold Proposition 8 and the 1996 federal Defense of Marriage Act, arguing both reflect the nation’s historical meaning of marriage and serve the vital social purpose of connecting children to their mothers and fathers.
Marriage — i.e., the legal union of one man and one woman — “is the cornerstone of Western civilization,” Austin R. Nimocks, a lawyer with the Alliance Defending Freedom, which is helping defend Proposition 8, said during a Tuesday briefing hosted by the Heritage Foundation.
“There’s no such thing as ‘parenting’ in the abstract,” said Heritage Foundation scholar Ryan T. Anderson. There is “mothering” and there is “fathering,” and “children do best with both,” he said.
Added constitutional scholar John Eastman: “Does the Constitution render traditional marriage unconstitutional? I think at the end of the day, the court is going to say ‘no’ to that.”
Major rallies to be held
On Tuesday, major pro- and anti-gay marriage demonstrations are expected as the Supreme Court hears 60 minutes of oral arguments about whether Proposition 8 is constitutional under the Equal Protection Clause of the 14th Amendment. In one sign of the intense interest the case has sparked, Supreme Court officials confirmed to The Associated Press that lines had begun forming Thursday for the few public seats available to watch the arguments — five full days before the court convenes.
Proposition 8, passed by voters in November 2008, says “only marriage between a man and a woman is valid or recognized in California.” It was approved by voters to trump the California Supreme Court, which in May 2008 legalized gay marriage; in the few months between the court’s ruling and Election Day, some 18,000 gay couples married in California.
Former George W. Bush administration Solicitor General Theodore Olson, representing gay couples Kristin Perry and Sandy Stier and Paul Katami and Jeff Zarrillo, will ask the high court to uphold two lower-court rulings that struck down Proposition 8. With President Obama last year announcing his own switch in favor of gay marriage, Obama administration Solicitor General Donald Verrilli Jr. will also argue that the proposition is unconstitutional.
Proposition 8 is defended by Washington, D.C., lawyer Charles J. Cooper, who represents Dennis Hollingsworth and others associated with ProtectMarriage.com, which backed the voter initiative.
On Wednesday, the high court will hear nearly two hours of arguments — an unusually long time for a single case — on a lawsuit on the constitutionality of the federal Defense of Marriage Act.