Supreme Court Proceeds Cautiously on Same-Sex Marriage

By: Jan Crawford, CBS News Email
By: Jan Crawford, CBS News Email

How Americans Feel:

As the Supreme Court hears oral arguments in two high-profile cases this week - California's Proposition 8 and the 1996 Defense of Marriage Act - 60 percent of Americans think the federal government should legally recognize existing same-sex marriages and provide them the same federal benefits the government provides to heterosexual married couples. Just 35 percent do not think the government should do this.

The legality of same-sex marriage varies by state. When it comes to who should decide this issue, most Americans- 62 percent - think the decision should be left up to each individual state government, while just 26 percent think it should be up to the federal government.

Source: CBS News

Squarely confronting the issue of same-sex marriage for the first time, a majority of Supreme Court justices -- on both sides of the ideological divide -- seemed inclined to hold off on a landmark decision, with several indicating they believed they jumped into the issue too soon.

In 80 minutes of arguments in Hollingsworth v. Perry, a majority of justices indicated they are not yet ready for a broad ruling on same-sex marriage -- but they also appeared dissatisfied with the options for a narrow one.

Predicting a decision based on arguments is dangerous -- much can happen as the justices cast votes and set out writing opinions. But in today's arguments, justices on both sides seemed to be looking for a way to avoid deciding the merits of the California same-sex marriage case.

Voters in California passed Proposition 8, the ballot initiative banning same-sex marriage, in 2008 -- after the California Supreme Court said the state Constitution provided same-sex couples a right to marry. Supporters of same-sex marriage sued, and a federal district court judge ruled Prop. 8 was unconstitutional. The U.S. Court of Appeals for the 9th Circuit agreed.

But in the Supreme Court, the first questions the justices posed today -- and for about a quarter of the argument -- focused on whether defenders of Prop. 8 had proper legal standing. The defenders, four people who pushed for the ballot initiative, entered the case after the state refused to defend Prop 8 in court.

If the court ruled the defenders of Prop. 8 weren't properly before the court, the lower court ruling striking down Prop. 8 could remain in place and same-sex marriage likely would resume in California. Chief Justice John Roberts has long taken a narrow view of standing questions, seeing it as a tool to limit the court's reach. But other justices (Justice Antonin Scalia being a vocal exception) also focused on the issue.

Justice Anthony Kennedy -- considered the key swing vote in this case - -was direct, saying opponents of Prop. 8 are asking "for us to go into uncharted waters."

"I just wonder if the case was properly granted," Kennedy told attorney Ted Olson, the former Bush Administration solicitor general who argued against Prop. 8.

Justice Sonia Sotomayor implied the court would be best to hold off ruling on the fundamental issue of the right to marriage, saying, "Why is taking a case now the answer? We let issues perk, and so we let racial segregation perk for 50 years from 1898 to 1954."

Justice Samuel Alito also asked about "need to be cautious," saying, "same-sex marriage is very new... newer than cell phones or the Internet."

The questions suggest the court could punt on the broader issues and rule that Prop. 8 defenders were the wrong people to be in court in support of the law. But the justices also seemed uneasy about letting the state dictate who would support laws in court that public officials opposed -- which means it's not at all clear they will take that route.

On the merits, Justice Elena Kagan was most skeptical of Prop. 8, asked atty defending it: "Could you explain that a little bit to me," she asked the attorney defending the law, "what harm you see happening -- and when and how and what -- what harm to the institution of marriage or to opposite-sex couples?"

Attorney Chuck Cooper struggled to answer that basic question. He also struggled to explain how procreation can be a rationale for allowing marriage only between a man and a woman. Kagan pointed out that couples in their 50's can marry and asked whether states could ban that, too.

On the other side was Scalia, who demanded to know from Olson when the Constitution started protecting a right to same-sex marriage.

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