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Caution is watchword as justices approach California gay marriage case

This article first appeared in the St. Louis Beacon, March 26, 2013 - After the first of two days of historic legal arguments on the constitutionality of same-sex marriage, the betting line hasn’t changed: The U.S. Supreme Court likely will look for a way to avoid a broad ruling recognizing or rejecting gay marriage but will likely strike down the federal Defense of Marriage Act (DOMA).

Mary Ziegler, a professor at Saint Louis University Law School, put it this way: “Based on the comments, there isn’t any appetite to do anything broad -- either that there is a right for gay couples to marry or there isn’t.”

Michael A. Wolff, the dean at the law school, agreed in a terse email: “My bet: The court throws out the California case because the petitioners lack standing. And DOMA doomed.”

Caution was the watchword for the court on Tuesday as it took up the constitutionality of Proposition 8, the California initiative that negated a California Supreme Court decision requiring same-sex marriage. Wednesday's argument will center on DOMA, which denies federal benefits to same-sex couples.

The justices, especially the more conservative ones, spoke oftenTuesday about how new same-sex marriage is an institution, with Justice Samuel Alito noting that it was invented in the Netherlands in 2000.

No justice was so evidently agonizing over the case than the one who could decide it, Justice Anthony M. Kennedy. He seemed to want the California case to go away. "I just wonder if this case was properly granted," he said.

In what sounded like a straight read out of his conflicting thoughts, Kennedy said, “I think that there’s substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more.

“On the other hand, there is an immediate legal injury or legal – what could be a legal injury – and that’s the voice of these children.  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?”

Kennedy is important because the court is generally viewed as split 4-4 on same-sex marriage with Kennedy as the decider.  In the past, Kennedy has shown sympathy for gay rights. He wrote the decision striking down criminal laws against same-sex sodomy and a Colorado initiative that discriminated against gays in housing.

Kennedy might get his wish of making the California case go away.  A number of justices questioned whether the California supporters of gay marriage have the legal “standing” to appeal a lower court decision throwing out Prop 8. 

State officials refused to appeal the lower court decision, but the California Supreme Court said that five supporters of the proposition could file an appeal.

If the Supreme Court determines they don’t have the standing to be heard in court, then the lower court decision invalidating Proposition 8 would stand and same-sex marriage would be the law again in California.

David Roland, director of the libertarian Freedom Center of Missouri, was disappointed that the court questioned the standing of the Prop 8 supporters.

"Although it appears that the justices are likely to determine that the proponents of Prop 8 lacked standing to pursue the appeals... I'm persuaded that this would be a dangerous conclusion," he wrote in an email.  "A number of states afford their citizens the power of initiative precisely because the will of the people may diverge from the interests of their elected officials."

Ziegler said she was struck by the relatively soft tone of the arguments. Justice Antonin Scalia “was more moderate than in the past,” she said, “when he had talked about bestiality and children abuse and the homosexual agenda.”

Scalia did press Theodore Olson, the conservative lawyer challenging Proposition 8, to tell him when same-sex marriage had become a right protected by the equal protection clause of the Constitution.

Olson, the famed lawyer who won Bush vs. Gore for president George W. Bush, answered Scalia with a question – something that a lawyer without his exalted standing would not have the temerity to attempt.

“When – may I answer this in the form of a rhetorical question,” asked Olson, “did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate school?”

Olson’s point was that it took the Supreme Court many decades after adoption of the 14th Amendment’s equal protection guarantee after the Civil War to apply it to school desegregation – 1954 – and interracial marriage – 1967.

Scalia predictably bridled. “Don’t give me a question to my question,” he said.

Olson responded, “There’s no specific date in time. This is an evolutionary cycle.”

Scalia is not fond of the notion that constitutional rights evolve.

Charles Cooper, the former Reagan administration official arguing for Prop 8, told the justices that California voters had only asked to push the “pause button” to see how gay relationships and families played out.

“There no way that she (the California voter) … could possibly know what the long-term implications of profound redefinition of a bedrock social institution would be. That is reason enough….that would hardly be irrational for that voter to say, I believe that this experiment, which is now only fairly four years old even in Massachusetts, the oldest state that is conducting it, to say, I think it better for California to hit the pause button and await additional information.”

But Solicitor General Donald B. Verrilli, speaking for the Obama administration, said that Prop 8 “did not hit the pause button but the delete button.”

Verrilli had difficulty with a major part of the administration’s argument that those states that had already offered same-sex unions were more vulnerable to a constitutional challenge than states that always have barred gay marriage. Both conservative and liberal justices were skeptical.

Part of the government’s argument is that states like California, which extend all of the benefits of marriage to gay unions, can’t claim that there is a rational reason for denying them marriage.

Chief Justice John Roberts reacted to the argument saying that this suggested the case was only about "the label" of marriage.

Cooper, too, had his difficulties. He conceded that there is no area outside of marriage where there is a rational reason to discriminate against gays and lesbians. The one reason that marriage is different, he said, is that marriage is an institution created for procreation.

Justices Elena Kagan and Stephen Breyer jumped on that argument asking if Cooper planned to cut off marriage for couples that were infertile, over 55 or just didn’t want children.

Cooper said that “the natural, procreative capacity of opposite-sex couples continues to pose vitally important benefits….to society, and that’s why marriage itself is the institution that society has always used to regulate those heterosexual, procreative relationships."

William H. Freivogel is a professor in the Southern Illinois University's School of Journalism, a contributor to St. Louis Public Radio and publisher of the Gateway Journalism Review.