- The Washington Times - Tuesday, March 26, 2013

Despite a lively question-and-answer session for the first of this week’s two historic gay marriage cases, the nine Supreme Court justices on Tuesday offered no clear clues on whether they will back traditional marriage or affirm the right to same-sex unions — or just kick the judicial can down the road.

Tuesday’s case could settle the standoff in California over gay marriage, and the second case, to be argued Wednesday, challenges a federal law that only recognizes marriages of one man and one woman, preventing gay couples from accessing the benefits afforded straight couples.

Taken together, the two cases could permit the nation's highest court to answer important questions about the legality of gay marriage and how sexual orientation should be treated when equal rights are an issue.

SEE ALSO: Voices pro and con ring out as Supreme Court weighs gay marriage

Thousands of protesters for and against gay marriage gathered at the Capitol and Supreme Court to make their voices heard.

On Tuesday, in a packed courtroom, the high court heard oral arguments in Hollingsworth v. Perry, a case involving the constitutionality of Proposition 8, a voter-passed California initiative that defines marriage as only the unions of one man and one woman.

A key area of inquiry was what would happen if the court struck down Proposition 8.

SEE ALSO: Both sides optimistic, uncertain as gay marriage arguments end

Would the ruling be limited to legalizing gay marriage in California? justices asked. Or would it also force a few other states that have domestic partnerships or civil unions to convert them to marriage? Or would it become a national ruling, forcing all states to strike down their man-woman marriage laws?

“The problem with the case is that you’re really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters,” observed Associate Justice Anthony M. Kennedy.

Former Solicitor General Theodore B. Olson, representing two same-sex couples who want to overturn Proposition 8, responded that the high court had ventured into the unknown in 1967 when it struck down laws banning interracial marriage.

Mr. Olson’s answer wasn’t completely satisfying for Justice Kennedy, but he and the other justices moved on, posing a wide range of questions to Mr. Olson; Charles J. Cooper, who represented Dennis Hollingsworth and other supporters of Proposition 8; and Solicitor General Donald B. Verrilli Jr., who came as a friend of the court in support of Mr. Olson’s side.

Mr. Cooper was asked about the legal injuries to some 37,000 children being raised by gay couples who cannot marry. “The voice of those children is important in this case, don’t you think?” asked Justice Kennedy.

Mr. Cooper’s answer was that there wasn’t any data on such a subject.

Associate Justice Stephen G. Breyer also wanted to know why marriage — as a procreative institution — is not good for gay couples but OK for opposite-sex couples who can’t have children. “Couples that aren’t gay but can’t have children get married all the time,” Justice Breyer said to Mr. Cooper.

“The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional, procreative purposes,” Mr. Cooper replied. It’s also a concern, he added, to have the age-old institution of marriage refocused “away from the raising of children” to something that meets the “emotional needs and desires of adults.”

Proposition 8, Mr. Olson said, “walls off” marriage from gay and lesbian couples, “labeling their most cherished relationships as second-rate, different, unequal and not OK.”

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