T he U.S. Supreme Court moved cautiously into the gay marriage debate Tuesday, wondering if it is the right time to weigh in on a sweeping and fast-evolving social issue while signaling any ruling likely will not settle the debate.
"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?" asked Justice Samuel Alito, a conservative. "I mean, we do not have the ability to see the future."
Justice Sonia Sotomayor, part of the court's liberal wing, similarly asked, "If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?"
Justice Anthony Kennedy, the court's ideological swing vote, fretted about moving into "uncharted waters."
At issue is a 2008 voter-approved California initiative that overturned a court interpretation that the state Constitution includes a right for gays and lesbians to marry.
On the merits, the judges left few clues about what a decision could look like, other than signaling it could be limited in scope, far short of the national ruling some want.
Ted Olson, the lawyer representing opponents of the California proposition defining marriage as between a man and a woman, descended the court steps to thunderous applause but when asked about an outcome told reporters, "based upon the questions that the justices asked, I have no idea."
The scene outside the court was reminiscent of last year's hearings on the health care law. The pro-gay marriage side outnumbered its foes, but both put on a noisy demonstration, agreeing it was a pivotal moment in history. Signs declaring "Kids do best with a Mom & Dad" competed with ones like "I love my lesbian moms." There were shouting matches and a man in a tight pink, see-through top, rainbow tutu and devil horns.
Today, the court will hear a challenge to the Defense of Marriage Act, which denies same-sex couples federal benefits.
While facing uncertainty in court, gay rights advocates said public attitudes had already shifted to their side, even if the court was not prepared to accept that.
"The momentum seems unstoppable right now," said an upbeat Stuart Gaffney, 50, of San Francisco, who showed up with his partner wearing the tuxedos they used for their marriage in 2008 before California's ban was enacted. "It seems like every day we see another poll showing national majority support for equal marriage rights, another Republican or another Democrat coming out for marriage equality."
California's Proposition 8 states, "Only marriage between a man and a woman is valid or recognized in California." Two couples who were denied a marriage license, Kristin Perry and Sandra Stier, and Jeffrey Zarrillo and Paul Katami, argued the voter-approved measure violated equal protection. They were in the courtroom Tuesday.
"It walls off gays and lesbians from marriage, the most important relation in life, according to this court, thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal, and not okay," Olson said during the oral arguments, which lasted 80 minutes.
Charles Cooper, the lawyer for Proposition 8 supporters, faced a barrage of questions over whether there was standing to bring the case. The state of California chose not to defend the proposition and the high court has not before given standing to proponents of ballot initiatives.
He urged the court to move slowly, calling gay marriage a still-new "experiment" and said it was valid for California voters to "wonder what the long-term implications of profound redefinition of a bedrock social institution would be."
Pressed on what makes marriage between a man and woman unique, Cooper responded that they could procreate. But that argument met skepticism — and brought some humor to the court, packed with spectators and journalists.
"There are lots of people who get married who can't have children," said Justice Stephen Breyer, wondering if sterile people should be prohibited from marrying.
"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," said Justice Elena Kagan, causing an outburst of laughter from the audience.
Replied Cooper: "Society's interest in responsible procreation isn't just with respect to the procreative capacities of the couple itself. The marital norm, which imposes the obligations of fidelity and monogamy, your honor, advances the interests in responsible procreation."
Kennedy, who wrote the majority opinion on two other cases advancing gay rights, wrestled with the question, saying there was "substance to the point" that gay marriage was a young institution whose societal effects are still under review.
On the other hand, he added, there are nearly 40,000 children in California who live with same-sex parents and want their parents to have full marriage rights.
"The voice of those children is important in this case, don't you think?" Kennedy said.
Justice Antonin Scalia also brought up children, saying "there's considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not."
Olson faced challenges as well. "Same-sex couples have every other right, it's just about the label," suggested Chief Justice John Roberts.
"It is like you were to say you can vote, you can travel, but you may not be a citizen," Olson said. "There are certain labels in this country that are very, very critical."
At one point, Scalia asked Olson when exactly it became unconstitutional to bar gays and lesbians from marrying. Olson threw the question back: "When did it become unconstitutional to prohibit interracial marriages?" — a reference to a 1967 decision sweeping away state bans on interracial marriage. The case came up throughout the hearing.
Gay marriage is legal in the District of Columbia and nine states: Massachusetts, Connecticut, Vermont, Iowa, New Hampshire, New York, Maryland, Washington and Maine. Twelve other states allow civil unions or domestic partnerships. Twenty-nine states, including Florida, have passed bans on gay marriage.
There are various possible outcomes from Tuesday's proceeding, including that the court does nothing, which would likely mean the appeals court ruling in California overturning Proposition 8 would stand. The court could expand its view to the other states offering civil unions, or, less likely, the nation.
Cooper pressed the court to stay out of the issue.
"That democratic debate, which is roiling throughout this country, will definitely be coming back to California," he said. "It is an agonizingly difficult, for many people, political question. We would submit to you that that question is properly decided by the people themselves."
The court's rulings will likely come in late June.
Contact Alex Leary at [email protected]