- 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.

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

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.

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

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.”

But then he was asked pointedly if California gay couples — who already have all the rights and responsibilities in marriage in domestic partnerships — are just after the “label” of marriage.

Since they have every other right, “all you’re interested in is the label and you insist on changing the definition of the label. It’s just about the label,” Chief Justice John G. Roberts Jr. said.

Mr. Olson countered by saying that “there are certain labels in this country that are very, very critical,” and marriage has “a status.”

Chief Justice Roberts agreed, but added that “maybe it is the procreative aspect that makes it a fundamental right.”

Even the brief history of gay marriage was delved into, with Associate Justice Samuel Anthony Alito Jr. noting that such nuptials are “newer than cellphones or the Internet,” while Associate Justice Antonin Scalia repeatedly asked Mr. Olson about exactly “when” it become unconstitutional to prohibit gays from marriage.

“We don’t prescribe law for the future. We decide what the law is,” said Justice Scalia. “I’m curious — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the 14th Amendment was adopted?”

Mr. Olson tried to answer rhetorically, saying the same could be asked of school segregation and interracial-marriage bans. “Don’t give me a question to my question,” Justice Scalia replied, but even as the audience laughed, the justice pressed again on, asking again, “when” did the Constitution change on marriage?

“There’s no specific date in time,” Mr. Olson finally responded. “This is an evolutionary cycle.”

“Well, how am I supposed to know how to decide a case … if you can’t give me a date when the Constitution changes?” Justice Scalia said.

After the court session ended, many media pundits concluded that Proposition 8 has no chance of being upheld, and the only questions are how the court would strike it down.

If the court dismisses the case with no ruling at all, it is widely believed that an outcome would almost certainly allow gay marriages to resume in California.

The session, which ran about 80 minutes long, riveted the 400 people in the courtroom, which included actor-director Rob Reiner, who opposes Proposition 8; and leading gay-rights lawyers including Mary L. Bonauto of the Gay and Lesbian Advocates and Defenders, and Evan Wolfson, leader of Freedom to Marry.

Andrew Pugno, general counsel of ProtectMarriage.com, which petitioned the court with Dennis Hollingsworth and others, to hear its case to uphold Proposition 8, said he thought the hearing went “very well” and that Mr. Cooper spoke clearly on their behalf.

“We have every confidence that the nine justices will resist the political pressure to prematurely end the national debate about the definition of marriage,” he said, adding that gay marriage is “a social experiment that needs no special protection by or recognition from the U.S. Supreme Court.”

President Obama, who personally supports same-sex marriage, received updates at the White House on Tuesday about the oral arguments, and senior adviser Valerie Jarrett and White House counsel Kathryn Ruemmler were among the White House officials who attended the oral arguments.

White House press secretary Jay Carney said public officials who are expressing support for same-sex marriage, and polls reflecting more public support for it, are a “welcome phenomenon.”

“The president has noted … the transformation that’s been taking place in American society on these issues,” Mr. Carney said. “It is a recognition by an increasing number of Americans that gay and lesbian Americans ought not to be discriminated against. And it reflects his core beliefs on these issues.”

Mr. Verrilli, representing the Justice Department, also took part in Tuesday’s oral arguments, saying in part that states with same-sex “civil unions” also should be required to accept full recognition of gay marriage as well.

Mr. Verrilli is back in court on Wednesday to agree with a lesbian widow that the federal Defense of Marriage Act of 1996 is unconstitutional.

Dave Boyer contributed to this report.

• Cheryl Wetzstein can be reached at cwetzstein@washingtontimes.com.

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