WASHINGTON – The Supreme Court waded Tuesday into one of the most divisive issues of the past decade as the nine justices struggled to decide whether the right to same-sex marriage is guaranteed by the Constitution or should be left to the states to regulate.
In a spirited oral argument, the court took up the controversial question of whether California voters violated the Equal Protection Clause of the 14th Amendment when they approved a statewide referendum in 2008 that banned same-sex marriage.
As hundreds of demonstrators cheered and applauded outside the court, the justices inside the chambers heard the first of two cases dealing with gay marriage. The justices today will hear arguments on the constitutionality of a 1996 federal law that defines marriage as between one man and one woman.
Although the justices could rule that gays have the same fundamental right to marriage as heterosexual couples, some justices indicated they might prefer a narrow ruling that might not impact states such as Ohio, which banned same-sex marriage in a 2004 statewide referendum.
“On a question … of such fundamental importance, why should it not be left for the people – either acting through initiatives and referendums or through their elected public officials?’’ asked Justice Samuel Alito, one of the court’s conservatives.
Justice Antonin Scalia echoed that, saying “you are asking us to impose this on the whole country, not just California.’’
Justice Sonia Sotomayor asked, “If you say that marriage is a fundamental right, what state restrictions could ever exist? Is there any way to decide this case in a principled manner that is limited to California only?’’
More than one-third of the oral argument was devoted to whether supporters of the California issue have the legal standing to even bring the case. If the justices decide they do not, they could let stand a 2010 ruling by a federal judge in California that the statewide issue was unconstitutional and limit its impact solely to California.
The case pitted two Republican Party attorneys against each other. Ted Olson, who served as solicitor general under former President George W. Bush, argued that the ballot issue – known as Proposition 8 – was unconstitutional, while Charles Cooper, an assistant attorney general in the Reagan administration, called on the justices to approve the measure.
Cooper said attitudes on same-sex marriage are “changing and changing very rapidly in this country as people throughout the country engage in an earnest debate over whether the age-old definition of marriage should be changed to include same-sex couples. The question before this court is whether the Constitution puts a stop to that ongoing democratic debate and answers this question for all 50 states.’’
By contrast, Olson forcefully argued that Proposition 8 “walls off gays and lesbians from marriage … thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal, and not OK.’’
Both attorneys came under ferocious questioning from the justices, with Scalia repeatedly expressing doubts about Olson’s contention that gay marriage is a fundamental right.
“When did it become unconstitutional to exclude homosexuals from marriage?’’ Scalia demanded. Standing his ground, Olson said there was “no specific date,’’ but he repeated that the courts have concluded that marriage is a fundamental right.
“It seems to me you can’t tell me,’’ Scalia said.
But Cooper encountered stern questioning from Justice Elena Kagan, who sharply objected to Cooper’s argument that the ability of heterosexual couples to reproduce gives the state a major interest in regulating marriage.
What about a man and woman getting married after age 55, Kagan asked.
“I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage,’’ Kagan said.
That prompted a sharp exchange between Kagan and Scalia after Scalia sarcastically asked, “I suppose we could have a questionnaire at the marriage desk when people come in to get the marriage – you know, are you fertile or are you not fertile?”
Apparently not amused, Kagan snapped back, “Well, I just asked about age. I didn’t ask about anything else.’’
As the lawyers left the front of the court to appear before TV cameras, hundreds of people cheered. Among those waiting outside was Ted Morgan of Columbus, who arrived at the court just after 5 in the morning. When asked if gay marriage advocates outside the court outnumbered those opposed to gay marriage, Morgan replied, “Are you kidding? Can’t you feel’’ all the energy?