Supreme Court Proceeds Cautiously on Same-Sex Marriage

Same-sex marriage supporters shout slogans in front of the US Supreme Court on March 26, 2013 in Washington, DC. The US Supreme Court on Tuesday takes up the emotionally charged issue of gay marriage as it considers arguments that it should make history and extend equal rights to same-sex couples. Waving US and rainbow flags, hundreds of gay marriage supporters braved the cold to rally outside the court along with a smaller group of opponents, some pushing strollers. Some slept outside in hopes of witnessing the historic hearing. / JEWEL SAMAD/AFP/Getty Images
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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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This week, as the Supreme Court prepares to hear two landmark cases concerning same-sex marriage, momentum appears to be on the side of gay rights: A recent poll shows support for gay marriage at an all-time high; voters in Maine and Maryland approved same-sex marriage at the ballot box last November; and in the past few weeks, a slew of high-profile politicians -- including former Secretary of State Hillary Clinton and Sens. Claire McCaskill, D-Mo., Mark Warner, D-Va., and notably, Rob Portman, R-Ohio -- have announced their own support.

But as the court prepares to hear arguments on the Defense of Marriage Act (DOMA) and Proposition 8, two critical cases governing the laws surrounding same-sex marriage, its opponents, however diminishing in numbers, remain defiant in their beliefs -- and committed as ever to making them heard.

"We will never go away. We will never stop fighting for the truth about marriage," said Brian Brown, president of the National Organization for Marriage (NOM), in an interview with "If the court recognizes same-sex marriage, it will launch another culture war."

The legal arguments against same-sex marriage -- as expressed in a number of briefs filed by its opponents in the DOMA and Prop. 8 cases -- range from concerns about religious freedom; to originalist claims about the intent of the founding fathers; to the less conventional notion that heterosexuals, unlike same-sex couples who are unable to procreate with each other, pose a "very real threat" to society when not bound by marriage, and thus the institution should be unique to couples with this capability.

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But for many, the argument is as much or more about upholding a certain idea of "morality" -- often inspired by the Christian faith -- as it is about the nuances of constitutional law. And for some, those things are one and the same.

"We believe the basis of morality on which this nation was founded was the Judeo-Christian morality expressed in the Bible," said John Eidsmoe, a lawyer for the Christian group Foundation for Moral Law. The Bible expresses objections to homosexuality, he argues, and thus there's no reason to believe the framers would have approved of giving same-sex couples the right to marry. "We see nothing in the Constitution that would remotely guarantee the right of same-sex marriage."

Not to mention the fact that the group, which describes itself as "committed to protecting our unalienable right to publicly acknowledge God," isn't exactly on board with so-called "homosexual conduct."

"We would argue that there's plenty of evidence that homosexual conduct is unhealthy," he said. "When we're talking about same-sex marriage it involves the state. It's not just saying we're going to recognize your right to [get married], but we're going to give it our official stamp of approval. We think that's going way too far."

Gay rights advocates argue that denying same-sex couples -- historically a politically disadvantaged group -- the same rights as heterosexual couples -- historically a politically advantaged group -- is discrimination grounded in bigotry. For that reason, they say, it shouldn't be left to a popular vote.

"Fortunately, in America, we don't put everything up to a vote," said Evan Wolfson, executive director of the Freedom to Marry group, on CBS' "Face the Nation" this week. "My marriage is my marriage, and it means I'm able to share in the same aspirations of commitment and love and support and dedication and connectedness, and that my parents are able to dance at our wedding and that our family and friends are able to support and celebrate and hold us accountable for the commitment we've made to one another. That takes nothing away from anyone else. The gay people are not going to use up all the marriage licenses when we enter marriage."

Brown, of the National Organization for Marriage, rejects the premise that denying gay couples the right to marry amounts to discrimination. Discrimination, he argues, is the act of treating two equals as non-equals. He doesn't see straight and gay couples as equals when it comes to this particular institution.

"There is no civil right to put into law an untruth that somehow unions of two men or two women are the same thing as a union of a man and a woman," he said. "They are not the same. And it is not discrimination to say that they are not the same."

Plus, contrary to what most polls posit, he and other opponents of same-sex marriage argue that popular opinion is on their side after all.

"If [same-sex marriage is] inevitable, as the media would like us to believe, there's no reason for the court to interject itself in this," said Tony Perkins, of the conservative Family Research Council, on "Face the Nation" this week. "The reality is it's not inevitable and the American people, when they've had the opportunity to speak on this, have spoken overwhelmingly. Thirty states, eight additional states, have the definition of natural marriage into their statutes. So we're far from being at a point where America has embraced same-sex marriage."

David Bossie, the president of Citizens United, whose National Committee for Family, Faith and Prayer filed a brief in the DOMA case, had a different take: "Morality should not be swayed by public opinion polls," he said in an email to "The United States Supreme Court does not speak for God. Marriage has been around for over a millennium and The National Committee for Family, Faith and Prayer will continue to fight for pro- family values through old and new media outlets."

For the time being, groups that oppose marriage equality seem immediately focused on touting their messages in advance of the Supreme Court's ruling -- rather than what they'll do pending a loss. Certainly, though, Brown says the issue won't be settled even if the court rules in favor of same-sex marriage.

"If the court did this, it would launch another culture war like Roe v. Wade," he said. "Before Roe, many of those that were supposed to be in the know claimed that once the Supreme Court ruled, the issue would be settled. Has that happened?"

Even people who agree with gay rights advocates that history is moving toward support for same-sex marriage are inclined to agree that one Supreme Court ruling will hardly retire the issue for good.

"Just about everybody thinks that this debate is heading in one direction. There is a note of caution though," said Adam Winkler, a professor of constitutional law at UCLA. "If we had been talking about the state of women's access to abortion in 1973 after Roe v. Wade had been decided, we would be convinced that society was moving inexorably towards expanding the rights of women to control their bodies. And here we are, 40 years later, and Roe is a weaker precedent than it ever was before. There's laws being adopted every day it seems in America restricting women's access to abortion."

"Progress is not inevitable," Winkler added. "We can never take it for granted."

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