California's Proposition 8 Gets Its Day In The Supreme Court

The Supreme Court began a two-day legal test of gay marriage laws on Tuesday, and the questions asked by some of the justices suggested they did not think the California ban on same-sex marriage belonged in their court.

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Inside the courtroom, the debate over California's gay marriage ban was joined with sharp questions and a splash of humor. But where will all lead is still unknown. As NPR's Carrie Johnson reports, expectations for a sweeping and decisive ruling may be overblown.

CARRIE JOHNSON, BYLINE: Chief Justice John Roberts set the tone in the opening moments. Almost immediately, he pressed the lawyer defending California's gay marriage ban on the most basic of points.

CHIEF JUSTICE JOHN ROBERTS: Maybe it'd be best if you could begin with the standing issue?

JOHNSON: Standing is the ability to show a direct interest, like an injury, to bring a case. Since California's governor and attorney general refused to defend the ban, Roberts asked, what right did a bunch of private citizens have to go to court? Roberts suggested that lawyer Charles Cooper and his clients may not be able to clear that hurdle in defending the ballot measure known as Proposition 8.

That means the court could throw out the California case without a decision on the central issue. Justice Anthony Kennedy, a swing voter in the past on the court's gay rights cases, said he had identified an injury on the other side of the case, though, an injury to nearly 40,000 children of same-sex couples who now can't marry in California.

JUSTICE ANTHONY KENNEDY: 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?

JOHNSON: When Cooper was able to move on to the meat of his argument, he said marriage had been defined as a union between a man and a woman forever. Making changes to that definition is a job for the people, he said, not the courts.

CHARLES COOPER: Redefining marriage will have real world consequences and it is impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be.

JOHNSON: Cooper said the traditional marriage arrangement promotes responsible procreation, which prompted several justices to ask about infertility or couples who get married after middle age. Cooper's exchange about the facts of life with Justice Elena Kagan generated a rare burst of laughter from the spectators.

COOPER: Your Honor, even with respect to couples over the age of 55, it is very rare that both parties to the couple are infertile. And the traditional...

JUSTICE ELENA KAGAN: No, really, because if a couple...

(LAUGHTER)

KAGAN: 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.

JOHNSON: Ted Olson, the lawyer for two same-sex couples in California who challenged the ban, said marriage is a fundamental right.

TED OLSON: The case that's before you today is whether or not California can take a class of individuals based upon their characteristics, their distinguishing characteristics, remove from them the right of privacy, liberty, association, spirituality and identity that marriage gives them.

JOHNSON: Several justices said they were struggling with the case. If they threw out the California same-sex marriage ban, wouldn't they be forced to extend the right to marry to people in states that don't even recognize domestic partnerships? Others seemed to find the idea of a right to marry rather novel, maybe too novel for the Supreme Court to weigh in. Justice Samuel Alito...

JUSTICE SAMUEL ALITO: But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones and the Internet?

JOHNSON: Justice Kennedy, who puzzled through his options over the course of the argument, had this to say to the lawyer representing two same-sex couples.

KENNEDY: 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 and there's a cliff, whatever that is.

JOHNSON: Outside the courthouse, reporters caught up with Olson, the lawyer fighting the marriage ban, and asked for his prediction.

OLSON: Based upon the questions that the justices asked, I have no idea.

JOHNSON: Carrie Johnson, NPR News, Washington.

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