The U.S. Supreme Court is suggesting it could find a way out of the case over California's ban on same-sex marriage without issuing a major national ruling on whether gays and lesbians have a right to marry, an issue one justice said was newer than cellphones and the internet.
Several justices, including some liberals who seemed open to same-sex marriage, raised doubts Tuesday that the case was properly before them. Justice Anthony Kennedy, the potentially decisive vote on a closely divided court, suggested that the court could dismiss the case with no ruling at all.
Such an outcome would almost certainly allow gay marriages to resume in California but would have no impact elsewhere.
Kennedy said he feared the court would go into "uncharted waters" if it embraced arguments advanced by gay marriage supporters. But lawyer Theodore Olson, representing two same-sex couples, said that the court similarly ventured into the unknown in 1967 when it struck down bans on interracial marriage in 16 states.
Kennedy challenged the accuracy of that comment by noting that other countries had had interracial marriages for hundreds of years.
There was no majority apparent for any particular outcome and many doubts expressed about the arguments advanced by lawyers for the opponents of gay marriage in California, by the supporters and by the Obama administration, which is in favour of same-sex marriage rights.
Kennedy made clear he did not like the rationale of the federal appeals court that struck down Proposition 8, the California ban, even though it cited earlier opinions in favor of gay rights that Kennedy wrote.
That appeals court ruling applied only to California, where same-sex couples briefly had the right to marry before voters adopted a constitutional amendment in November 2008 that defined marriage as the union of a man and a woman.
Several members of the court also were troubled by the Obama administration's main point that when states offer same-sex couples all the rights of marriage, as California and eight other states do, they also must allow marriage.
Justice Samuel Alito described gay marriage as newer than such rapidly changing technological advances as cellphones and the Internet, and appeared to advocate a more cautious approach to the issue.
"You want us to assess the effect of same-sex marriage," Alito said to Solicitor General Donald Verrilli. "It may turn out to be a good thing. It may turn out to be not a good thing."
Charles Cooper, representing the people who helped get Proposition 8 on the ballot, ran into similar resistance over his argument that the court should uphold the ban as a valid expression of the people's will and let the vigorous political debate over gay marriage continue.
Here, Kennedy suggested that Cooper's argument did not take account of the estimated 40,000 children who have same-sex parents. "The voices of these children are important, don't you think?" Kennedy said.
Court's first major look at gay rights in a decade
Excerpts from the courtroom:
On whether the case should be before them:
Justice Kennedy: "...once the state goes half way, it has to go all the way or 70 per cent of the way, and you're doing so in a case where there's a substantial question on standing. I just wonder if the case was properly granted."
On the question of children of same-sex parents:
Justice Kennedy: "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 status. The voice of those children is important in this case, don't you think?"
On the question of children of same-sex parents:
Justice Scalia: "If you redefine marriage to include same-sex couples, you must permit adoption by same-sex couples, and there's considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not."
On the rights of same-sex couples:
Mr. Olson (representing two same-sex couples): "...the right to get married, the right to have the relationship of marriage is a personal right. It's a part of the right of privacy, association, liberty, and the pursuit of happiness."
This is the court's first major examination of gay rights in 10 years. On Wednesday, the justices will also consider the federal law that prevents legally married gay couples from receiving a range of benefits afforded straight married Americans.
Both sides of the case were represented outside the courthouse. Supporters of gay marriage came with homemade signs including ones that read "a more perfect union" and "love is love."
Actor-director Rob Reiner, who helped lead the fight against California's Proposition 8, was at the head of line Tuesday morning. Some people waited since Thursday — even through light snow — for coveted seats for the argument.
Among the opponents was retired metal worker Mike Krzywonos, 57, of Pawtucket, R.I. He wore a button that read "marriage 1 man + 1 woman" and said his group represents the "silent majority."
The two California couples challenging the voter-approved ban on same-sex marriage in the nation's largest state also are at the court for the argument and are urging the justices to strike down not just the California provision, but constitutional amendments and statutes in every state that define marriage as the union of a man and a woman.
They envision the 21st century equivalent of the court's 1967 decision in Loving v. Virginia that struck down state bans on interracial marriages.
The Obama administration has weighed in on behalf of the challengers, following President Barack Obama's declaration of support for same-sex marriage last year and his invocation of gay rights at his inauguration in January.
Supporters of Proposition 8 say the court should respect the verdict of California voters who approved the ban in 2008 and let the fast-changing politics of gay marriage evolve on their own, through ballot measures and legislative action, not judicial decrees.
Legal in 9 states
Same-sex marriage is legal in nine states and the District of Columbia. The states are Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington.
Thirty states ban same-sex marriage in their state constitutions, while ten states bar them under state laws. New Mexico law is silent on the issue.
Polls have shown increasing support in the country for gay marriage. According to a Pew Research Center poll conducted in mid-March, 49 per cent of Americans now favour allowing gays and lesbians to marry legally, with 44 per cent opposed.
The California case is being argued 10 years to the day after the court took up a challenge to Texas's anti-sodomy statute. That case ended with a forceful ruling prohibiting states from criminalizing sexual relations between consenting adults.
Kennedy was the author of the decision in Lawrence v. Texas in 2003, and he is being closely watched for how he might vote on the California ban. He cautioned in the Lawrence case that it had nothing to do with gay marriage, but dissenting Justice Antonin Scalia predicted the decision would lead to the invalidation of state laws against same-sex marriage.
Kennedy's decision is widely cited in the briefs in support of same-sex unions.
The court has several options for its eventual ruling, which is not expected before late June. In addition to upholding the ban and invalidating prohibitions everywhere, the justices could endorse an appeals court ruling that would make same-sex marriage legal in California but apply only to that state. They also could issue a broader ruling that would apply to California and eight other states: Colorado, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. In those states, gay couples may join in civil unions or become domestic partners and have all the benefits of marriage but cannot be married.
One other possibility is a ruling that says nothing about marriage. California's top elected officials, Gov. Jerry Brown and Attorney General Kamala Harris, are refusing to defend Proposition 8, and there is a question about whether the Proposition 8 supporters have the right, or legal standing, to defend the measure in court. If the justices decide they do not, the case would end without a high court ruling about marriage, although legal experts widely believe same-sex marriages would quickly resume in California.
The California couples, Kris Perry and Sandy Stier of Berkeley and Paul Katami and Jeff Zarrillo of Burbank, filed their federal lawsuit in May 2009 to overturn the same-sex marriage ban that voters approved the previous November. The ballot measure halted same-sex unions in California, which began in June 2008 after a ruling from the California Supreme Court.
Roughly 18,000 couples were wed in the nearly five months that same-sex marriage was legal and those marriages remain valid in California.
The high-profile case has brought together onetime Supreme Court opponents. Republican Theodore Olson and Democrat David Boies are leading the legal team representing the same-sex couples. They argued against each other in the Bush v. Gore case that settled the disputed 2000 presidential election in favor of George W. Bush.
Opposing them is Charles Cooper, Olson's onetime colleague at the Justice Department in the Reagan administration.
The case is Hollingsworth v. Perry, 12-144.