Court may hold off California
marriage law ruling, justices suggestتكبير الصورةتصغير الصورة معاينة الأبعاد الأصلية.
People take part in the March for Marriage on Tuesday outside the
Supreme Court building in Washington as justices heard arguments in a case
challenging California's same-sex marriage ban, the 2008 voter-approved ban
known as Proposition 8. (CNS/Nancy Phelan Wiechec)
The legal question of the constitutionality of
California's law banning same-sex marriage may take a back seat to consideration
of whether the time is "ripe" for a national-level ruling, suggested the Supreme
Court justices' questioning in the first of two major marriage cases being heard
the last week of March.
In oral arguments Tuesday in Hollingsworth v.
Perry, the justices first asked each of the three attorneys making presentations
to weigh in about whether the group of people appealing a federal judge's
decision overturning Proposition 8 has the legal standing to do so.
Prop 8 is being defended in court not by the
California governor or attorney general, who declined to appeal, but by those
who put the amendment on the ballot.
Much of the questioning revolved around whether
the country has had sufficient time to consider same-sex marriage and study how
such marriages affect society and particularly how they affect children.
Same-sex marriage hasn't even been a part of
society as long as cellphones and the Internet, noted Justice Samuel Alito. It's
too soon to know whether the effect of same-sex marriage is good or not, he told
Solicitor General Donald Verrilli Jr., who argued on behalf of the federal
government that the voter-approved California law should be overturned. The U.S.
government's position is that because California extends domestic partnership
benefits to same-sex couples, it is unconstitutional to prevent them from going
the additional step and marrying.
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Charles Cooper, the attorney for those who want
Prop 8 reinstated, argued that the court should uphold the law because it
represents the will of the majority of California voters. The national debate
over same-sex marriage should be allowed to continue without the government
stepping in to overrule a state's voters.
But Justice Anthony Kennedy noted that according
to briefs filed with the court, an estimated 40,000 California children have
same-sex partners as parents, and he told Cooper his argument doesn't take into
account their interests in having parents who are treated the same as
"The voices of these children are important, don't
you think?" Kennedy said.
The case was brought by two California couples who
were denied marriage licenses after the state's voters in 2008 approved a
constitutional amendment limiting marriage to heterosexual couples. The law was
passed after the state Supreme Court ruled earlier that year that statutes
banning same-sex marriage were unconstitutional.
After a federal District Court judge found that
Prop 8 served no legitimate purpose and violates due process and equal
protection rights of same-sex couples to marry, the 9th U.S. Circuit Court of
Appeals in a 2-1 ruling upheld that conclusion, although on a narrower legal
The Supreme Court is weighing two separate issues:
whether the supporters who appealed have the legal standing to challenge it in
court, and secondarily, whether the amendment violates the Constitution.
Scores of organizations representing millions of
people according to their religious, legal, civil rights, medical and
educational interests weighed in on both sides of the case with "amicus" or
The U.S. Conference of Catholic Bishops was among
those who filed briefs. It urged the court to uphold Prop 8, arguing that
although the Supreme Court "has held that laws forbidding private, consensual,
homosexual conduct between adults lack a rational basis, it does not follow that
the government has a constitutional duty to encourage or endorse such conduct.
Thus, governments may legitimately decide to further the interests of
opposite-sex unions only."
The USCCB brief argues that because the union
between a man and a woman is "the only union capable of creating new life,"
therefore "given both the unique capacity for reproduction and unique value of
homes with a mother and father, it is reasonable for a state to treat the union
of one man and one woman as having a public value that is absent from other
intimate interpersonal relationships."
Justice Elena Kagan asked Cooper why, if the right
to marriage is predicated on a heterosexual couple's role in reproduction, is it
legal for infertile heterosexual couples to be married. She posed the
hypothetical case of two 55-year-olds who would not be able to have children.
Cooper's response didn't address her hypothetical, but he noted that some men
are able to father children well into their later years.
The Prop 8 case could be tossed out simply on the
basis of who is defending it. Or the court could say the law is constitutional,
effectively leaving the question of who can be married to be decided by the
Other possibilities raised by the American Bar
Association's publication "Preview of United States Supreme Court Cases,"
include that the court could find that California denied equal protection by
extending and then withdrawing the right for same-sex couples to marry; or
decide that because California affords domestic partnership rights it is
constitutionally required to allow them to marry or by deciding that laws
denying marriage equality to same-sex couples violates the constitutional right
to equal protection under the law.
On Wednesday, the court is scheduled to hear
arguments in a second case raising different legal issues about same-sex
marriage. The justices are considering the constitutionality of the federal
Defense of Marriage Act, which defines marriage for U.S. government purposes as
between one man and one woman.
That case takes up the 1996 law known as DOMA that
was passed by Congress and signed by President Bill Clinton defining marriage as
between one man and one woman for the federal government's purposes, such as for
Social Security benefits, federal programs, and federal estate and income taxes.
The law is being challenged by a New York woman who inherited her wife's estate
upon her death and had to pay $363,000 in federal estate taxes. Had her spouse
been male, she would have been exempted from that tax.
The USCCB also was among those who filed a friend
of the court brief in the DOMA case. It said there is "no fundamental right to
marry a person of the same sex. ... Specifically, civil recognition of same-sex
relationships is not deeply rooted in the nation's history and tradition --
quite the opposite is true."