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United for Marriage SCOTUS Supporters of marriage equality gather outside the U.S. Supreme Court, where justices heard the challenge to California’s Proposition 8, a ballot initiative that overturned the state’s same-sex marriage law.
Supporters of marriage equality gather outside the U.S. Supreme Court, where justices heard the challenge to California’s Proposition 8, a ballot initiative that overturned the state’s same-sex marriage law.
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Published: Wednesday, 3/27/2013

Supreme Court hears arguments in Calif. same-sex marriage case

Protesters from both sides flood Washington

BY TRACIE MAURIELLO
BLOCK NEWS ALLIANCE

WASHINGTON — Calling it the country’s last civil-rights battle, lawyers representing two couples at the heart of a landmark same-sex marriage case emerged from the U.S. Supreme Court saying they believed Tuesday’s oral arguments went well and that the justices’ line of questioning bodes well for their clients.

Opposing attorneys said they too felt encouraged.

Both sides are hoping for a bold ruling that will apply nationwide, but justices’ comments seemed to point toward the possibility of a narrow opinion that may apply only to California. That’s the only state where the right to same-sex marriage was granted by a court and subsequently revoked by a ballot initiative.

Justice Anthony Kennedy, a highly watched swing voter, suggested that throwing out the ban could take the Supreme Court into “uncharted waters.”

Theodore Olson, who represents the two California couples, said the court already did just that in 1967, when it declared unconstitutional state laws preventing interracial marriage.

The current case, Hollingsworth vs. Perry, concerns the constitutionality of Proposition 8, a 2008 state law prohibiting gay marriage in California.

Attorney Charles J. Cooper, who represents the four Proposition 8 proponents, argued that the primary purpose of marriage is to encourage procreation within stable families comprising biological parents and children.

Justice Elena Kagan asked Mr. Cooper whether it would be constitutional to prevent marriage between two people both over the age of 55 because they can no longer bear children.

Justice Antonin Scalia, a conservative, picked up her line of questioning. “Suppose you could have a question at the marriage desk: ‘Are you fertile?’ ” he said.

Justice Kagan, meanwhile, wanted an answer to another question.

“You’re saying, well, if we allow same-sex couples to marry it doesn’t serve the state’s interest. But do you go further and say that it harms any state interest?” she asked.

“What harm do you see happening and when and how? What harm to the institution of marriage or to opposite-sex couples?”

Mr. Cooper responded that redefining marriage would have adverse consequences but that “it is impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be.”

In legal briefs, he had argued that allowing gay people to marry would denigrate the importance of the designation and weaken the social norms that encourage mothers and fathers to wed.

“This is a measure that walls off the institution of marriage, which is not society’s right [but] an individual right,” Mr. Olson argued. “This court, again and again and again, has said 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.”

The case was brought by California couples Kristin Perry and Sandra Stier, and Jeffrey Zarrillo and Paul Katami, who challenged California law after they were denied marriage licenses.

In federal district court in San Francisco, Judge Vaughn Walker sided with the couples, and the 9th U.S. Circuit Court of Appeals upheld the decision on narrow grounds that the law revoked a right to same-sex marriage that the state had granted.

Dennis Hollingsworth and other Proposition 8 supporters appealed it to the U.S. Supreme Court when state officials refused to defend the law.

A wide range of decisions is possible, including one that would extend the right to marry to same-sex couples nationwide.

Other possible decisions could leave the issue to the states or extend full marriage benefits to gay couples in eight states where civil unions are legal.

A narrow ruling that California denied equal protection by extending and then taking away the right to marry would apply only to that state.

Doug NeJaime, a law professor at Loyola University in Los Angeles who studies same-sex marriage cases, said the court seemed to lean toward a narrow ruling.

“Even the justices who were sympathetic to the plaintiffs had some concerns about how far such a ruling should go and whether it’s the right time to go this route,” said Mr. NeJaime.

The court could throw out the case and not rule on the substantive issue.

In Toledo, Holy Cross Reformed Catholic Church hosted an interfaith prayer service for love and justice, with participation from eight area churches.

Episcopalian, New Thought, United Church of Christ, and United Methodist congregations took part in the worship and to support same-sex marriage.

Metropolitan Archbishop Marcus Heckman of Holy Cross said that on Palm Sunday 2012, “I married 250 [same-sex] couples in Cleveland.”

Though the couples could not obtain marriage licenses, “we provided a certificate and we actually put it in our sacramentary [book]. We recognize [same-sex marriage] as an actual sacrament of the church,” the archbishop said.

The average amount of time those 250 couples had been together, Archbishop Heckman said, “came out to about eight years.”

The Block News Alliance consists of The Blade and the Pittsburgh Post-Gazette. Tracie Mauriello is a reporter for the Post-Gazette. Blade staff contributed to this report.

Contatct Tracie Mauriello at tmauriello@post-gazette.com or 703-996-9292.



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