USA supreme court and same sex marriage

the culture of deference

WASHINGTON—Supreme Court justices appeared divided Tuesday during historic arguments over the fate of gay marriage in California


Proposition 8, a 2008 California voter initiative that rescinded the marriage rights of same-sex couples in the state, had left him conflicted.


The high court for the first time is directly tackling gay marriage, now legal in nine states and the District of Columbia. The court on Wednesday will hear a challenge to the federal Defense of Marriage Act, a 1996 law denying federal recognition and benefits, such as exemption from the estate tax, to same-sex spouses.

During the arguments, justices zeroed in on several of the overarching issues that have vexed the nation for more than two decades, including the purpose of marriage and the meaning of the Constitution’s guarantee of equal protection as applied to gays and lesbians.


Behind their deliberations was the recognition of fast-changing public opinion, with polls showing a majority of Americans now favor gay marriage.




Defending Proposition 8, lawyer Charles Cooper said marriage was designed to advance a state’s interest in “responsible procreation.” He said marriage could be threatened if same-sex couples with no ability to bear children could be married.


Justice Elena Kagan asked if the same rationale would allow a state to deny marriage to people over 55. “If both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage,” she said.

No state authorized same-sex marriage until Massachusetts in 2004. denying marital status to gay couples potentially harmed at least one group: their children, of whom there are nearly 40,000 in California.

The court’s four liberals, meanwhile, aggressively questioned Mr. Cooper. Justice Sonia Sotomayor pushed him to explain what other forms of discrimination against homosexuals he found acceptable. “Outside of the marriage context, can you think of any other…reason for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them?”


Mr. Olson replied by raising Loving v. Virginia, the court’s 1967 decision invalidating a ban on interracial marriage. By the chief justice’s logic, the court could have told Mildred and Richard Loving that “‘you can’t get married, but you can have an interracial union,’ ” Mr. Olson said. “Everyone would know that that was wrong.”

No justice seemed ready to embrace Mr. Olson’s argument that same-sex marriage must be recognized nationwide. Justice Ruth Bader Ginsburg said even the Loving case was the culmination of many on interracial marriage.