A cautious and conflicted Supreme Court on Tuesday seemed wary of a broad constitutional finding on whether same-sex couples have the right to marry, and some justices indicated that it may be premature for them to intervene in a fast-moving, unsettled political environment.
Justice Anthony M. Kennedy, considered to be the pivotal vote on the issue, said the court was in “uncharted waters.” He questioned whether it should have even accepted the case, in which lower courts struck down California’s voter-approved Proposition 8, which restricted marriage to heterosexual couples.
The court’s historic review of same-sex marriage continues Wednesday with a more limited question: May Congress withhold federal benefits from same-sex couples married in those states where it is legal? Lower courts have said that the Defense of Marriage Act of 1996 is unconstitutional because it treats legally married homosexual couples differently from heterosexual ones.
The cases have had a buildup befitting the consideration of one of the most divisive and politically charged issues in American life. Same-sex marriage did not exist anywhere in the world before 2000, and the national mood about such unions has changed so rapidly, it has left politicians and the law behind.
Inside the court’s ornate chambers, some justices wanted to slow things down.
“You want us to step in and render a decision based on an assessment of the effects of this institution, which is newer than cellphones or the Internet?” Justice Samuel A. Alito Jr. asked. “We do not have the ability to see the future.”
Even Justice Sonia Sotomayor, whose questioning indicated that she was skeptical of the reasons proffered for why gay couples should not be allowed to marry, seemed to think that it might not be time for the court to make a bold decision.
“If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?” she asked.
A ‘difficult question’
Sotomayor’s question indicated the complicated nature of the case at hand.
Washington lawyer Charles J. Cooper is representing proponents of Proposition 8 in defending the law, since California officials have refused. He said the court should respect the decision of California voters, who faced the “agonizingly difficult question” of whether to protect traditional marriage after the state Supreme Court ruled that gay couples could wed.
Theodore B. Olson, representing two California couples who want to marry, wants Proposition 8 overturned. But he is also pushing the court to find that the Constitution demands that the fundamental right to marry be extended to same-sex couples nationwide.
And Solicitor General Donald B. Verrilli Jr., representing the Obama administration, is offering something of a middle ground. He said those states — fewer than 10 — that offer gay couples benefits such as civil unions must take the next step and offer marriage.
The administration’s position drew almost no interest from the justices. And from their comments, it was difficult to locate a majority of five for either of the other options.
Chief Justice John G. Roberts Jr. expressed a keen interest in whether the court might dispose of the case by finding that Cooper’s clients did not have the legal standing to bring it. And Kennedy’s speculation that perhaps the court should not have accepted the case would in effect affirm the appeals court’s ruling.
Either of those outcomes would probably have the real-world impact of returning same-sex marriage to California but would not set a precedent for other cases.
Kennedy, who wrote the court’s last two decisions that provided victories for gay rights groups, seemed particularly torn.
“The problem with the case is that you’re really asking . . . for us to go into uncharted waters, and you can play with that metaphor: There’s a wonderful destination, it is a cliff,” he said, adding: “We have five years of information to weigh against 2,000 years of history or more.”
On the other hand, he said: “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 also worried that a decision that Cooper’s clients did not have standing to bring the case would encourage state officials to simply not defend citizen initiatives with which they disagree.
A familiar divide
The debate about whether marriage should be extended to same-sex couples revealed a familiar ideological divide on the court.
Liberals such as Justice Elena Kagan seemed not to buy Cooper’s argument that the state’s interest in marriage was to foster responsible procreation and child-rearing.