RENEE MONTAGNE, HOST:
This is MORNING EDITION, from NPR News. I'm Renee Montagne.
DAVID GREENE, HOST:
And I'm David Greene. Good morning.
Outside the U.S. Supreme Court, people braved a cold, wet night on the pavement, some getting in line days ago for a chance to witness the historic arguments on same-sex marriage.
MONTAGNE: Today, justices hear arguments on a constitutional challenge to a ban on gay marriage here in California that is much like laws in other states.
GREENE: A second round of arguments tomorrow involves the federal Defense of Marriage Act. NPR legal affairs correspondent Nina Totenberg reports on what is before the court today.
NINA TOTENBERG, BYLINE: This week's cases fall into the category of the truly momentous, so much so that Supreme Court advocate Tom Goldstein literally pounded the table when speaking to law students last month.
TOM GOLDSTEIN: It's actually relatively rare that the Supreme Court decides something of such monumental importance that your grandchildren will be thinking about them, and this is that kind of case. This is special. There were no cases like this in the time that I was in law school. This is a foundational decision that I think is going to be decided for centuries.
TOTENBERG: On one side of the argument is the idea of equality - on the other, traditional notions of how society has ordered itself.
Today's arguments come in the face of a shift in public opinion that even opponents of same-sex marriage admit is unprecedented. Polls show that support for gay marriage has jumped from percentages in the low 40s just four years ago to majorities now as high as 58 percent.
California's Proposition 8 was enacted by voter initiative in 2008 to ban same-sex marriage. The lead plaintiffs in the case are Kristin Perry and Sandy Stier. Together, they've raised four boys - Perry's biological twins and Stier's two sons, the products of a heterosexual marriage many years ago.
Perry, a children's advocate, and Stier, a technical systems expert, were married in 2004, when same-sex marriage was briefly legalized in San Francisco, but the marriage was later voided by the state courts. Kris Perry.
KRISTIN PERRY: There is no more important decision you make as an adult than who you choose to love and build a family with, and I'm not allowed to enter into that institution, simply because of the gender of who I love - not because I've done anything illegal, not because I am not contributing, not because I've done anything other than end up this way. It not only hurts me, it hurts my parents. It hurts my kids.
TOTENBERG: The sponsors of Prop 8 declined to be interviewed for this broadcast, as did their lead lawyer, Charles Cooper. But in arguments before the Federal Appeals Court in California, Cooper defended the constitutionality of Prop 8 this way.
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TOTENBERG: Society, he said, has no interest in other relationships, no matter how close.
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TED OLSON: The ability or willingness to procreate or the interest in having children sexually has never, ever been a condition for the entry into marriage anywhere in this country.
TOTENBERG: That's Ted Olson, who represents Perry and the other challengers to Prop 8. He notes that people too old to have children, or who don't want to have children, even people in prison have a right to marry in California, as long as they're heterosexual.
OLSON: The state of California is saying you can marry whoever you want, provided it must be a person of the opposite sex.
TOTENBERG: Olson argues there's no justification for that distinction, and that just as the Supreme Court struck down state laws banning marriage between people of different races, it should strike down laws banning marriage between people of the same gender.
But those defending Prop 8 - including a group called Alliance Defending Freedom - note that the citizens of California have, in fact, twice, since 2000, voted to ban same-sex marriage.
Austin Nimocks is counsel for the Alliance.
AUSTIN NIMOCKS: We are claiming that the Supreme Court should not try to remove the decision on the future of marriage from the hands of the people, that the people are sovereign, that they do have a right to maintain marriage as one man and one woman, as it has always been.
TOTENBERG: Ted Olson counters by pointing to the 14th Amendment, guaranteeing equal protection of the law, a guarantee that he says was enacted especially to protect minorities.
OLSON: The 14th Amendment was specifically enacted to put a check on the power of the states. And that is a check on the power of the states whether exercised by the people directly, as in Proposition 8, or by a state legislature.
TOTENBERG: Nimocks contends that same-sex couples have all the same legal rights as married couples under California's domestic partnership law. But Olson dismisses that argument, asserting that it's analogous to telling African-Americans they should use separate drinking fountains or go to separate schools. Nimocks repeatedly returns to the notion of marriage as a mechanism to ensure that those who create children are responsible for them.
NIMOCKS: Same-sex relationships, historically, as compared to opposite-sex relationships, are not as stable. It's one thing for a kid to not have a dad or not have a mom through the circumstances of life or whatever may occur. It's another thing to intentionally deprive a child of a mom and a dad. And that's the debate that's going on, whether that's a good and a healthy thing that we as a society should embrace.
TOTENBERG: Olson disputes every aspect of that argument, contending that the Supreme Court has never ruled that procreation is the fundamental basis for marriage and countering the portrayal of gay parents as less stable.
OLSON: In fact, the principal expert witness of our opponents said that children - and there are 37,000 children in gay and lesbian families in California - would be better off if their parents were allowed to get married. And the evidence was that there is no significant distinction in the well-being of children in same-sex households as in opposite-sex households. The key to the well-being of children is not the gender of their parents. It is what is in the heart of the parent.
TOTENBERG: Underlining that argument is a brief filed by parents, families and friends of lesbians and gays, which includes an essay by 10-year-old Braiden Neubecker. She was removed from her home as a toddler, and with her brother, shuttled to five foster homes before the kids were adopted by a gay couple, Lee and David Neubecker.
BRAIDEN NEUBECKER: (Reading) I was four when I met them. Now I am 10, and they have kept their promises. They do so much for me. They never hurt me or my brother. I feel so safe. I believe I can do anything with my two dads.
TOTENBERG: The legal case to be argued today, however, is focused on what, if any, justification the state of California has for banning same-sex marriage. Ted Olson argues that even under the lowest standard - what's known as rational basis - the state cannot justify the ban. Under the rational basis test, a law is upheld if there's basically any reason for it. In arguments before the appeals court, lawyer Charles Cooper said the only way the court could strike down Prop 8 would be if, as he put it...
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TOTENBERG: But Ted Olson replies that none of the offered justifications for Prop 8 hold water - not family, not kids, not tradition and not the institution of marriage.
OLSON: No one has come up with any reason why same-sex marriage damages heterosexual marriage in any way.
TOTENBERG: Olson, however, would like the court to use a tougher, more skeptical standard in evaluating laws that treat homosexuals and heterosexuals differently. The threshold question for the justices today, however, is whether there should be any case at all, since the state of California not only refuses to defend Prop 8 in court, but has filed a brief contending that the sponsors of the law have no legal standing to appeal the lower court decisions that declared the law unconstitutional. Nina Totenberg, NPR News, Washington.
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