Reluctant, justices hear arguments over same-sex marriage

As partisans argued pointedly over same-sex marriage outside the U.S. Supreme Court building, either hoping for or dreading a landmark decision, justices inside seemed reluctant to extend a sweeping constitutional right for gays and lesbian to wed in all 50 states.

In the first of two days of hearings on cases that have the potential to fundamentally alter how American law treats marriage, Justice Anthony Kennedy — considered the likely deciding vote on the divided court — questioned whether the case even belonged before the court.

“This was a deeply divided Supreme Court, and a court that seemed almost to be groping for an answer here,” said CNN Senior Legal Analyst Jeffrey Toobin, who watched the arguments.

On the point of allowing same-sex marriage in California, Justice Elena Kagan, a liberal member of the court, asked, “What harm is there to the institution of marriage?”

But more conservative members of the court took a go-slow approach. Justice Samuel Alito said the law on same-sex marriage is too new.

“There isn’t a lot of data on its effect” on children and the institution of marriage, he said.

The 80 minutes of arguments Tuesday on California’s Proposition 8 ban on same-sex marriages will be followed Wednesday by arguments on the federal Defense of Marriage Act, a 1996 law that defines marriage as between a man and a woman.

Supporters of same-sex marriage rallied outside the Supreme Court, hoping justices would reach for a broad ruling that would strike down bans nationwide.

“We are not asking for anything more than our neighbors, friends and family, but certainly expect no less,” said Todd Bluntworth, who spoke with his husband and their two children to a crowd of supporters hoping for a historic ruling from the Supreme Court striking down laws banning same-sex marriage.

But opponents urged the court to keep out of the issue and leave the decision to states.

“If you want to get married, go to one of the states that allows gay marriage,” said Carl Boyd Jr., a conservative Nashville talk-show host. “Stop trying to force your agenda down our throats. Quit trying to bully the American people with the homosexual agenda.”

Some demonstrators carried sign reading “Kids do best with a mom & dad.”

Tuesday’s hearing involved California’s Proposition 8, which bans same-sex marriage.

Voters approved the proposal 52% to 48% in November 2008, less than six months after the state Supreme Court ruled that marriage is a fundamental right that must be extended to same-sex couples.

The overriding legal question is whether the 14th Amendment guarantee of equal protection under the law prevents states from defining marriage as California has.

Two of the key plaintiffs are Paul Katami and Jeff Zarrillo, a Burbank, California, couple who want to marry but can’t because of Proposition 8. They say the state is discriminating against them for their sexuality.

“Stigma is stigma. And discrimination is discrimination,” Katami told CNN.

“I think that any time there’s discrimination in the country, it needs to be addressed and it needs to be taken care of,” he said. “And that’s why we feel that anytime in our history when there’s been racial discrimination or sexual discrimination of orientation, or in particular marriage at this point, that we always bend toward the arch of equality.”

Patchwork state laws

If the court decides in their favor, it would mark a historic shift in how the law treats marriage, striking down laws across the country banning same-sex marriage and matching an apparent cultural shift toward acceptance of same-sex couples.

Or the court could leave the current patchwork of state laws in place, choosing to let state legislatures and state courts sort it all out.

Forty-one states now forbid same-sex marriage, although nine of them allow civil partnerships. Nine other states allow same-sex marriage, and about 120,000 same-sex couples have gotten married, according to estimates.

California’s bans seem to run counter to polls that show rising support overall for same-sex marriage. A CNN/ORC International poll released Monday found that 53% of Americans now support same-sex marriage, up from 40% in 2007.

California Attorney General Kamala Harris, who is arguing against Proposition 8, said voter-approved marriage bans “are simply unconstitutional.”

The Supreme Court has ruled more than a dozen times that marriage is a fundamental right, “and as it relates to a fundamental right, the court will hold that under the highest level of scrutiny,” Harris said.

On Wednesday, justices will hear arguments in a separate case involving the federal Defense of Marriage Act, which, like the California law, defines marriage as between a man and a woman.

The law bars the federal government from recognizing state-sanctioned same-sex marriages. It prevents legally married gay and lesbian couples from getting federal benefits and privileges, like tax breaks and survivor benefits, that are extended to opposite-sex married couples.

No immediate decision

The court is unlikely to announce its decision until June.

But people could get a sense of which way the decision will go by listening to the questions posed by Justice Anthony Kennedy, said CNN senior legal analyst Jeffrey Toobin.

The court’s four liberal justices are likely to vote to overrule Proposition 8, he said. Four conservatives are likely to vote to keep it.

“The most likely person to give the fifth vote is Anthony Kennedy,” who previously authored two important gay rights decisions, Toobin said.

Partisans speak out

Same-sex marriage supporters say it’s time for the court to take a stand that puts all Americans on the same footing.

“This is about our equality,” Katami said. “This is about our freedom and our liberty. So we are not trying to topple marriage. We are not trying to redefine marriage. What we are trying to say is that equality is the backbone of our country.”

But supporters of Proposition 8 and DOMA say the Supreme Court should stay out of the issue and let voters decide what they want.

“Our most fundamental right in this country is the right to vote and the right to participate in the political process,” said Austin Nimocks of the Alliance Defending Freedom, a Christian advocacy group.

“We don’t need the Supreme Court to take that right away from Americans of good faith on both sides of this issue and impose its judicial solution,” Nimocks said. “We need to leave this debate to the democratic process, which is working.”

Political positions

The Obama administration has formally expressed support for same-sex marriage in California, weighing in on the case in a brief last month. Obama, whose views on the issue have changed over his political career to full support, said he would vote to strike down the state’s law if he sat on the court.

In what some have labeled the “nine-state strategy,” the Justice Department argument is expected to center on the idea that civil union and domestic partnership laws may themselves be unconstitutional and that those states should go all the way and grant same-sex couples full marriage rights.

Other prominent politicians have expressed timely opinions in recent weeks, indicating the importance of the matter in the social context of 21st century American politics.

Hillary Clinton, the former secretary of state and possible 2016 Democratic presidential candidate, recorded a video for a gay rights group indicating her support.

Republicans have described cracks appearing in their party’s long-held opposition to same-sex marriage.

“There is no putting this genie back in the bottle. It is undeniable. The shift is here and we’re not going back,” Republican strategist and CNN contributor Ana Navarro said Sunday.

One prominent Republican, Sen. Rob Portman of Ohio, endorsed that shift this month, two years after his son revealed to him that he is gay.

The case being heard Tuesday is Hollingsworth v. Perry (12-144), dealing with Proposition 8. And coming up Wednesday is U.S. v. Windsor (12-307), which deals with the DOMA issue.
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23 comments

  • MWS

    It will be a sad, sad day in America if they allow this to happen. These people are vile and disgusting creatures and their need to shove there warped ideals down my throat nauseates me. I hope they are preparing for a place in Hell with their disgusting behaviors.

  • John

    Men who want to become women. Women who want to become men. How come this needs so much argument to reach the Supreme Court? A man and another cannot simply get married because it is morally wrong to our society. Its that simple. There are more pressing issues such a jobs, housing, gun control, and pensions. Americans…

  • Cecilia

    Marriage is between a man and a woman. A man and a man and a woman and a woman cannot create a child. The supreme court should up hold the constitution. Not assume, think, or what they think is right. They are there to up hold the law. All they will do is open the doors, and you have some people pretending they are gay so they can get benefits. And you cannot call this discrimation. God created man and woman to create a child. There’s one state that 80% said they did not want gay marriage, and that state ignored the people and said they are allowing gay marriage. That’s the democrats for you.

    • John

      Yes, the family is the basic unit of the society. Marriage protects the sanctity of the family as an institution. Homosexuals cannot establish familis on their own. When the constitution was framed, homosexuals were not the subject any equal protection or right to marry. "Men" pertains to real men and some half-men or quasi-men. Homosexuals and their advocates are twisting the truth to favor their perversions.

  • Hassan

    Good people of America"Our so called leaders are doing these horrible acts to our society'it's been in place for a while plotting and planning!!…This is discrimination to children,,it is vile deviant behavior we must come together all good and moral people of America and reclaim our country….from the anti-family movement…..

    • Keith

      YOU ARE A HATER AND IDIOT. WHAT DO YOU MEAN YOU SODOMITE! YOU ARE THE MAIN HATERS OF GOD WHO CREATED IN YOUR FORM.IF GOD MEANT FOR YOU TO LAY WITH A WOMAN THEN HEWOULD HAVE CREATED YOU AS A MAN.BUT AS JESUS SAID TO THE ENEMIES OF GOD AND HIMSELF I KNOW YOU YOU OF YOUR FATHER HE DEVIL AND YOU WILL DO THE LUST OF YOUR FATHER WHO WAS A LIAR AND MURDERER FROM THE BEGINNING.AND IN THE HOLY QURAN GOD TELLS SATAN I WILL SURLEY FILL HELL WITH ALL OF THEM THAT FOLLOW YOU.PEOPLE LIKE YOU ARE FROM GOD BUT NOT OF GOD YOU ARE OF YOUR FATHER THE DEVIL.YOU ARE AN ABOMINATION AND YOU SHOULD BE ASHAMED OF YOURSELF FOR EVEN SUPPORTING SUCH DISPICABLE AND DISGUSTING BEHAVIOR.IT DOESN'T MATTER TO ME BUTBIT DOES MATTER TO GOD WHO CREATED YOU AND GAVE YOU LIFE.YOU CAN'T SERVE TO MASTERS AND IT'S CLEAR WHO YOU SERVE.

  • Gay&Married

    Just glad that the intolerant people will figure out that they have been on the wrong side of history. It might take them some times longer but the shame of their comments and behavior will catch up with them eventually. As history has proven.

    It is time for tolerance for all of us.

    • Keith

      AS GOD TOLD SATAN IN THE HOLY QURAN I WILL SURLEY FILL HELL WITH ALL OF THEM THAT FOLLOW YOU.YOU ARE AN ABOMINATION AND YOU ARE FROM GOD BUT NOT OF GOD.YOU HAVE MADE YOUR CHOICE BEING GAY IS A CHOICE THAT YOU MADE.GOD DOES NOT MAKE MISTAKES.GOD MAKES US ALL IN OUR NATURAL NAUTURE.WHATEVER YOU ARE GAY OR LESBIAN YOU CHOOSE THAT NOT GOD.SO AS JESUS SAID TO THEENEMIES OF GOD IN THE BOOK OF JOHN I KNOW YOU YOU ARE OF YOUR FATHER THE DEVIL AND YOU WILL DO THE LUST OF YOUR FATHER.SO THAT'S WHAT YOU DOIN SODOMITE THE LUST OF YOUR FATHER THE DEVIL WHO WAS A LIAR AND MURDERER FROM THE BEGINNING.SO KEEP BEING TOLERABLE SODOMITE FOR GOD WILL FILL HELL WITH ALL OF YOU.

  • Andy P

    Wow, WGN must be the channel of choice for the in-bred.

    spare us the crap about sanctity of marraige…..50% of straight marriages end in divorce and the rate of adultery is even higher.

  • Keith

    WOW THIS IS REALLY SAD AND DISGUSTING.AMERICA AND THE CITY OF CHICAGO HAS BECOME A MODERN DAY SODOM AND GOMORRAH.GOD IS PRESENT IN THE WORLD TODAY AND AS IN THE DAYS OF LOTT HE WILL DESTROY THIS ADULTEROUS AND WICKED WORLD.HOMOSEXUALITY AND LESBIANISM ARE A ABOMINATION OF THE LAWS OF GOD.GOD SAID FOR MAN AND WOMAN TO BE FRUITFUL AND MULTIPLY AND REPLINISH THE EARTH.NOT BE FRUITY!GOD IS ANGRY WITH ALL OF YOU WHO ARE AGAINST HIM AND HIS CHRIST FOR NONE OF YOU ARE TRUE CHRISTIANS WHO WOULD SUPPORT SUCH A DISPLICABLE BEHAVIOR.AND IF YOU DON'T BELEIVE THAT GOD IS GOING TO DESTROY THE WICKED LOOK AT WHAT IS HAPPENING IN THE WORLD TODAY.GOD IS TIRED OF MANS SINS FOR HIS SINS HAVE REACHED HEAVEN.AND FOR SICK AND DEPRAVED PEOLPLE WHO ENGAGE IN SUCH FOUL AND DISGUSTING BEHAVIOR IF YOU DON'T BELEIVE THAT GOD HATES THE WICKED GO READ YOUR BIBLE AND GO TO PALASTINE TODAY IN THAT REGION WHERE SODOM AND GOMORRAH STOOD NOT A BLADE OF GRASS GROWS IN THAT REGION TODAY GOD LET'S YOU KNOW OF HIS DISAPPROVAL OF THIS KIND OF BEHAVIOR.YES GOD IS LOVE BUT NOT YOUR WICKED NASTY DISGUSTING LOVE.YOU ARE FROM GOD BUT YOU ARE NOT OF GOD AND AS JESUS SAID IN THE BOOK OF JOHN TO THE ENEIMIES OF GOD AND TO JESUS I KNOW YOU YOU ARE OF YOUR FATHER THE DEVIL AND YOU WILL DO THE LUST OF YOUR FATHER WHO WAS A LIAR AND MURDERER FROM THE BEGINNING.SO THOSE OF YOU WHO SUPPORTS THIS DISGUSTING BEHAVIOR ARE NOT OF GOD BUT OF YOUR FATHER THE DEVIL.AND MANS LAW DOES NOT NOR EVER WILL SUPERCEDE GODS LAW.

  • Concerned/Human

    Just reading most of the hate against other people makes me sick. That there are still comments out there with discriminatory and vulgar language about others makes me STOP watching and/or supporting WGN.

    • Keith

      IT'S IS NOT US THAT HATE ITS PEOPLE LIKE U WHO HATE GOD AND JESUS.YOU HATE THE CREATOR AND YOU HATE HIS COMMANDMENTS BECAUSE YOU PROBABLY ENGAGE YOURSELF IN SUCH SICK BEHAVIOR.YOU ALL WANT TO JUSTIFY BEHAVIOR THAT IS UNNATURAL AND ABNORMAL.PEOLPLE LIKE YOU ARE THE REASONS WHY SOCIETY AND THIS WORLD IS MESSED UP.BECAUSE YOU DON'T WANT TO OBEY GOD YOU WANT TO OBEY MAN AND ENGAGE IN ALL OF YOUR SICK AND REPULSIVE BEHAVIOR BECAUSE IT MAKES YOU FEEL GOOD.DONT CALL US HATERS BECAUSE WE DISAGREE WITH YOUR BELIEFS.WHEN IT IT CLEAR THAT YOU ARE THE HATER BECAUSE YOU CLEARLY HATE GOD AND THE CHRIST.YOU LOVE AND WANT TO ENGAGE IN CONDUCT THAT GOD TELLS US IS IN HIS EYES AN ABOMINATION.SOMDONT CALL US GOD FEARING FAMILY LOVING PEOPLE HATERS WHEN IT'S TRULY PEOPLE LIKE YOU WHO HATE GOD AND HIS CREATION.NOW WHAT DO YOU WANT TO SUPPORT NEXT SEX AND MOLESTATION OF CHILDREN.

    • Keith

      AND FURTHERMORE IT'S SODOMITES LIKE YOU SO CALLED CONCERNED HUMAN THAT MAKE ME SICK.ALL OF YOU MAKE ME SICK WITH ALL OF YOUR DISGUSTING AND SICK BEHAVIOR.EVERTHING THAT GOD HAS TOLD US IS WRONG MAN HAS SAID ITS NOT AND HAS MADE IT FAIRSEEMING.THATS WHY WHEN U PROBABLY SEE TWO MEN OR TWO WOMEN WALK DOWN THE STREET HUGGING AND KISSING IT DOESN'T DISGUST YOU.BECAUSE YOU OBEY MAN AND SATAN AND NOT GOD SO THAT'S HOW YOU ARE ABLE TO RATIONALIZE ITYOU SHOULD BE DISGUSTED AND ASHAMED OF YOURSELF

  • Keith

    AND ALL YOU POLITICIANS AND CLERGY SHOULD BE ASHAMED OF YOURSELVES.YOU ARE NOT MEN OF GOD HOE COULD YOU BE YOU CLAIM THAT YOU ARE CALLED TO THE GOSPEL AND THE MINISTRY BY GOD BUT YOU DON'T PREACH WHAT GOD TAUGHT.THEN YOU CLAIM YOU ARE CHRISTIANS BUT YOU DON'T PREACH THE THINGS THAT JESUS PREACHED.IF JESUS RETURNED HE HAVE EMINITY WITH YOU AND THIS WORLD.SO STOP HIDING BEHIND THE SAVIOUR TO DISGUISE YOUR SICK AND FREAKY BEHAVIOR.NONE OF YOU ARE OF GOD OR JESUS.YOU ARE ALL OF YOUR FATHER THE DEVIL WHO WAS A LIAR AND MURDERER AND DECEIVER FROM THE BEGINNING.AS GOD SAID TO SATAN IN THE HOLY QURAN I WILL SURLEY FILL HELL WITH ALL OF THOSE WHO FOLLOW YOU.YOU ARE NOT OF GOD .

  • Keith

    AND FOR THOSE OF YOU WHO WILL SAY IM HOMOPHOBIC IM NOT AFRAID OF HOMOSEXUALS OR LESBIANS WHICH IS WHAT BEING HOMOPHOBIC MEANS INSTEAD IM AFRAID FOR YOU CAUSE YOUR SINS HAS REACHED HEAVEN.DR KING DID NOT DIE FOR CIVIL RIGHTS FOR HOMOSEXUALS AND LESBIANS TO MARRY FOR HE WAS A RIGHTEOUS MAN CICIL RIGHTS HAS NOTHING TO DO WITH YOUR DEPRAVITY.BEING GAY OR LESBIAN IS A CHOICE GOD DOES NOT MAKE MISTAKES.HE MAKES ALL OF US IN OUR NATURE TO BE NATURAL OF HOW WE WERE CREATED.NOT UNATURAL THAT IS WHAT MAN AND SATAN HAS MADE.

  • Creature of God

    @Keith. You might want to go to a bible study class, so that you understand the thing a bit better than you do.

    It is a sin to bend the word of God.

    And with this….good night.

    • Keith

      I KNOW THE BIBLE AND THE SCRIPTURES YOU DON'T.I DON'T BEND THE WORD OF GOD OBVIOUSLY YOU DO BECAUSE YOU SUPPORT SUCH BEHAVIOR.YOU NEED TO STOP GOING TO WHATEVER BIBLE CLASS THAT YOU TO BECAUSE IT'S CLEAR YOU ARE NOT GOING TO ONE THAT TEACHES WHAT GOD SAYS NOR WHAT JESUS PREACHED.YOU GO THE CLASS OF THE ENEMIES OF GOD AND THE CHRIST BECAUSE YOU ARE TRYIN TO MAKE THIS BEHAVIOR FAIR SEEMING.SO YOU DON'T BEND THE WORD OF GOD AND I AGREE YOU ARE A CREATURE BUT OF GOD THE MOST HIGH READ YOUR BIBLE YOU ARE OF YOUR FATHER THE DEVIL AS JESUS SAID AND YOU WILL DO THE LUST OF YOUR FATHER.

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