Video: The Debate Over Gay Marriage at the Supreme Court
The justice whom many
observers view as the swing vote in the case, Justice Anthony Kennedy,
voiced worry at one point during the argument that proponents of
same-sex marriages were asking the court to issue a decision that would
"go into uncharted waters."
After the oral argument, Pete Williams
of NBC News reported that it seemed "quite obvious that the U.S.
Supreme Court is not prepared to issue any kind of sweeping ruling"
declaring that same-sex couples have a constitutional right to marry.
Williams said there seemed to be "very little eagerness" from any of the justices to "embrace that broad a ruling."
issue Tuesday was California's Proposition 8, the state constitutional
amendment enacted by voters in 2008 that limits marriage to one man-one
woman couples. Those seeking to have the court strike down Proposition 8
argue that the Equal Protection Clause of the Fourteenth Amendment
includes a right for same-sex couples to marry.
Williams said that
both the liberal and the conservative justices seemed wary of issuing a
decision that would apply to any state outside of California.
It seemed possible the court would not issue any ruling on marriage
at all - deciding instead that it had made a mistake in even agreeing to
hear the case since the plaintiffs, supporters of Proposition 8, might
lack the legal standing to bring the suit.
"I just wonder if the
case was properly granted," Kennedy said at one point to attorney
Theodore Olson who was representing those challenging the California
And a few justices seemed to imply that it might be prudent
for the court to step back and allow the states to assess what the
effects of same-sex marriages might be.
Justice Sonia Sotomayor
said at one point, "If the issue is letting the states experiment and
letting the society have more time to figure out its direction, why is
taking a case now the answer?"
Along similar lines, Justice Samuel
Alito said "there isn't a lot of data" about the social effects of the
institution of same-sex marriage.
"And it may turn out to be a
good thing; it may turn out not to be a good thing, as the supporters of
Proposition 8 apparently believe," Alito said to Solicitor General
Donald Verrilli, who was arguing for the Obama administration, as a
friend of the court, in opposition to Proposition 8.
"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 cell phones or the
Alito added, "On a question like that, of such fundamental
importance, why should it not be left for the people, either acting
through initiatives and referendums or through their elected public
Kennedy, while expressing those same concerns, also
noted, "On the other hand, there is an immediate legal injury or legal
- what could be a legal injury, and that's the voice of these children.
There are some 40,000 children in California ... that live with same-sex
parents, and they want their parents to have full recognition and full
It is possible that a majority of the justices could
support a ruling that applies only to California - or one that applies
only to California and several other states which allow domestic
partnerships that are almost identical to marriage in all but name.
the argument, Justice Antonin Scalia was the one justice who voiced the
most skepticism about the argument that limiting marriage to
heterosexual couples is a violation of the Fourteenth Amendment's Equal
He said to Olson, "I'm curious, when did it
become unconstitutional to exclude homosexual couples from marriage?
1791? 1868, when the Fourteenth Amendment was adopted? Was it always
Olson replied that "when we as a culture
determined that sexual orientation is a characteristic of individuals
that they cannot control" then at that point limiting marriage became
Scalia then asked, "When did that happen?"
Olson responded, "There's no specific date in time. This is an evolutionary cycle."
another point Chief Justice John Roberts asked Olson whether those
seeking to strike down Proposition 8 were interested only in the label
"marriage," since the state of California already grants same-sex
couples almost all the legal protections and rights provided to
heterosexual married couples.
"So it's just about the label in this case," Roberts said.
But Roberts then observed, "If you tell a child that somebody has to
be their friend, I suppose you can force the child to say, 'this is my
friend,' but it changes the definition of what it means to be a friend."
observers caution that one should not read too much into the questions
the justices ask and the comments they make during oral argument since
they don't necessarily reflect how any particular justice would
ultimately vote in the case.
Charles Cooper, who served in the
Reagan administration as assistant attorney general in charge of the
Office of Legal Counsel, argued the case Tuesday for supporters of
Although the justices are deciding a constitutional
question, the argument is taking place as polls indicate that public
opinion is shifting toward acceptance of same-sex marriage.
recent years, nine states, either through court rulings, legislation, or
ballot measures, have redefined marriage to include same-sex couples.
But most states have laws or constitutional provisions that define
marriage as the union of one man and one woman.
officials, such as Sen. Claire McCaskill, D-Mo., Sen. Rob Portman,
R-Ohio, and Sen. Jon Tester, D- Mont., are personally endorsing same-sex
marriage, but it remains to be seen whether the justices will be
influenced by public opinion.
In a statement Tuesday, Tester said,
"no one should be able to tell a Montanan or any American who they can
love and who they can marry."
Three weeks ago Tester signed an
amicus brief filed by Democratic members of Congress urging the justices
to overturn part of the 1996 Defense of Marriage Act.
Wednesday the high court will hear oral arguments in that challenge to
one section of the Defense of Marriage Act, which for purposes of
federal regulations and benefits, defines marriage as "a legal union
between one man and one woman as husband and wife."
Tom Curry, NBC News