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From NPR News, this is ALL THINGS CONSIDERED. I'm Audie Cornish.
We begin this hour with Case 12-144: Hollingsworth v. Perry. After years of litigation in the lower courts, the U.S. Supreme Court heard a challenge today to California's ban on gay marriage. It was adopted by voter initiative back in 2008. But today, it was quickly clear that the justices may not give either side the clear-cut victory it wants.
JUSTICE ANTHONY KENNEDY: I just wonder if the case was properly granted.
CORNISH: That's Justice Anthony Kennedy, widely viewed as a swing vote and possibly the deciding vote in this case. NPR legal affairs correspondent Nina Totenberg was in the courtroom and has this report.
NINA TOTENBERG, BYLINE: Charles Cooper got just 34 words out of his mouth, in defense of the ban on gay marriage, when he was interrupted by the chief justice, who instructed the lawyer to address the boring but essential question in the case: Should it be in the Supreme Court at all?
The state of California has refused to defend the ban known as Proposition 8. So do the sponsors of the voter initiative have legal standing to appeal a lower court decision invalidating the law? Justice Ginsburg pressed the point.
JUSTICE RUTH BADER GINSBURG: Have we ever granted standing to proponents of ballot initiatives?
TOTENBERG: No, conceded Cooper. But in this case, the state Supreme Court has ruled that the initiative sponsors do have legal standing under state law. The justices went back and forth on the issue for 15 minutes before Cooper was allowed to say why the ban on gay marriage does not violate the Constitution. Public opinion and knowledge about same-sex marriage is changing rapidly, he said.
CHARLES COOPER: 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.
TOTENBERG: Questioned by Justice Sotomayor, Cooper conceded that it would be unconstitutional to allow discrimination against gays and lesbians on matters such as employment. If that's true, pressed Sotomayor, then why can homosexuals be singled out for different treatment in their ability to marry?
COOPER: It is reasonable to be very concerned that redefining marriage to - as a genderless institution could well lead over time to harms to that institution and to the interests that society has always used that institution to address.
TOTENBERG: Cooper repeatedly insisted that the only interest the state has in granting marriage licenses is to encourage what he called responsible procreation. Justice Kagan followed up with this question.
JUSTICE ELENA KAGAN: What harm to the institution of marriage or to opposite-sex couples, how does this cause and effect work?
COOPER: Once again, I would reiterate that we don't believe that's the correct legal question before the court.
TOTENBERG: The correct legal question, Cooper said, is the right of the state to use a traditional definition of marriage. Justice Scalia chimed in to underline the point.
JUSTICE ANTONIN SCALIA: They're arguing for a nationwide rule, which applies to states other than California, that every state must allow marriage by same-sex couples. And so even though states that believe it is harmful - and I take no position on whether it's harmful or not, but it is certainly true that there's no scientific answer to that question at this point in time.
TOTENBERG: Justice Kennedy said there is sociological evidence about gay marriage that is new - only five years' worth - to be weighed against 2,000 years of history. On the other hand, he said, there is potentially an immediate problem for children living in same-sex households in California.
KENNEDY: There are some 40,000 children in California, according to the red brief, 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?
TOTENBERG: Cooper, however, replied that without what he called the traditional procreative purpose of marriage, the purpose of marriage would be refocused away from children and onto the emotional needs of adults. Justice Kagan asked whether, in light of that, it would be constitutional to bar marriage licenses for those over 55. For several minutes, Cooper tried to dodge the question contending that one partner in such a marriage is likely to remain fertile. Kagan wasn't letting him get away with it.
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.
TOTENBERG: Second up to the lectern was Theodore Olson, representing those challenging the California same-sex marriage ban. He, too, was instructed to address the procedural question, does this case belong in the Supreme Court at all? He contended that the sponsors of Proposition 8 have no legal standing to appeal an adverse ruling in the lower courts. Justices Kennedy and Alito were skeptical. Here's Alito.
JUSTICE SAMUEL ALITO: And the whole point of the initiative process was to allow the people to circumvent public officials about whom they were suspicious.
TOTENBERG: Olson finally got to make his argument that Prop 8 denies gay couples the equal protection of the law guaranteed by the Constitution.
THEODORE OLSON: This is a measure that walls off the institution of marriage, which is not society's right. It's an individual right that this court again and again and again has said the right to get married, the right to have the relationship of marriage is a personal right. It's a part of the right of privacy, association, liberty and the pursuit of happiness.
TOTENBERG: Chief Justice Roberts, however, disputed the notion that traditional marriage laws exclude same-sex couples. Rather, he maintained they're based on the historical definition of marriage. Justice Scalia hammered Olson repeatedly, demanding to know when same-sex marriage became constitutional.
OLSON: It was constitutional when we've, as a culture, determined that sexual orientation is a characteristic of individuals that they cannot control and that that...
SCALIA: I see. When did that happen? When did that happen?
OLSON: There's no specific date in time. This is an evolutionary cycle.
SCALIA: Well, how am I supposed to know how to decide a case, then?
OLSON: Because the case that's before you...
TOTENBERG: Justice Alito pointed out that California gives gay couples all the same legal rights that married straight couples have, prompting this remark from Chief Justice Roberts.
CHIEF JUSTICE JOHN ROBERTS: So it's just about the label in this case?
TOTENBERG: But Olson replied that the label marriage means something special.
OLSON: It is like you were to say you can vote, you can travel, but you may not be a citizen. There are certain labels in this country that are very, very critical.
TOTENBERG: Justice Kennedy, whose vote may be critical, repeatedly seem to shy away from making such a broad constitutional ruling, though. These are uncharted waters, he observed, wondering if the court might have jumped the gun in agreeing to hear the case. Justice Scalia, however, dismissed that notion.
SCALIA: It's still an issue of - too late for that now, isn't it? We've crossed that river, I think.
TOTENBERG: The Obama administration's chief appellate advocate, Donald Verrilli, made a brief appearance today siding with those challenging Proposition 8. However, he argued that at least for now, the Supreme Court does not have to make a broad ruling that would invalidate most state bans. His argument met with some skepticism from the court's liberals and conservatives. The conservatives wondered why the court should strike down even one state law banning same-sex marriage. Justice Alito.
ALITO: 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? I mean, we're - we are not - we do not have the ability to see the future.
TOTENBERG: As for the liberals, they asked why, if California's ban is unconstitutional, others are not too. Tomorrow, the court hears arguments in a case testing the federal law that bars federal benefits for same-sex couples who are married in nine states where such unions are legal. Nina Totenberg, NPR News, Washington.