Supreme Court hears historic argument on marriage laws

By Tom Curry, National Affairs Writer, NBC News

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Jonathan Ernst / Reuters

Anti-Proposition 8 protesters are shadowed by a rainbow banner in front of the U.S. Supreme Court in Washington, March 26, 2013.

The Supreme Court began hearing a historic one-hour oral argument on marriage Tuesday which could lead to any one of a wide array of possible decisions -- from essentially leaving in place the traditional marriage laws now on the books in most states to proclaiming same-sex marriage a fundamental right under the United States Constitution.

Although the justices are deciding a constitutional question -- whether the Equal Protection Clause in the Fourteenth Amendment includes a right for same-sex couples to marry -- the argument is taking place as polls indicate that public opinion is shifting toward acceptance of same-sex marriage. More elected officials, such as Sen. Claire McCaskill, D-Mo., on Sunday and Sen. Rob Portman, R-Ohio, last week, are personally endorsing same-sex marriage, but it remains to be seen whether the justices will be influenced by public opinion.

At issue in Tuesday?s argument is California?s Proposition 8, the state constitutional amendment enacted by voters in 2008. The high court could decide to uphold Proposition 8, or conversely, it could decide to not only strike it down but to invalidate any state law that limits marriage to one man and one woman. Or it could issue a limited ruling that applies only to California and several other states which allow domestic partnerships that are almost identical to marriage in all but name.

Supreme Court justices will consider whether to strike down two laws limiting the rights of same-sex couples. NBC News' Danielle Leigh reports.

In recent years, nine states, either through court rulings, legislation, or ballot measures, have redefined marriage to include same-sex couples.

But most states have laws or constitutional provisions that define marriage as the union of one man and one woman.

A decision from the high court is likely by the end of its term sometime in late June.

On Wednesday the court will hear oral arguments in a challenge to one section of the 1996 Defense of Marriage Act, which for purposes of federal regulations and benefits, defines marriage as ?a legal union between one man and one woman as husband and wife.?

Many court observers believe the pivotal swing vote in the marriage cases will be that of Justice Anthony Kennedy, who wrote the majority opinion in the court?s 2003 decision in Lawrence v. Texas which struck down state sodomy laws.

Proposition 8 was enacted with 52 percent of the vote less than six months after the California Supreme Court ruled that the state?s previous ban on same-sex marriages violated the state constitution. More than 18,000 marriage licenses were issued to same-sex couples in California before Proposition 8 was adopted.

Those supporting Proposition 8, four of the original five sponsors who put the measure on the California ballot, told the high court in their brief that the Constitution doesn?t mandate the traditional man-woman definition of marriage -- ?but neither does our Constitution condemn it.? The Equal Protection Clause does not include a right for same-sex couples to marry, they said. The justices ?should allow the public debate regarding marriage to continue through the democratic process, both in California and throughout the Nation.?

In their challenge to the California law, the plaintiffs said they agree with supporters of Proposition 8 ?that marriage is a unique, venerable and essential institution. They simply want to be a part of it ? to experience all the benefits the Court has described (in prior rulings) and the societal acceptance and approval that accompanies the status of being ?married.??

They say supporters of traditional marriage ?have never identified a single harm that they, or anyone else, would suffer as a result of allowing gay men and lesbians to marry.? Proposition 8, they argue, was enacted to stigmatize and harm gays and lesbians, not to serve any rational purpose.

Those challenging the California law -- who are represented in court Tuesday by Theodore Olson, who served as solicitor general of the United States under President George W. Bush -- lean heavily in their brief on Kennedy?s decision in Lawrence v. Texas.

That case involved private conduct that police had to enter a private residence to discover. In contrast, Tuesday?s case addresses marriage, which is not only public but requires legal acknowledgement and acceptance by other citizens. But in his decision in Lawrence v. Texas, Kennedy used language that might help lay a foundation for a ruling in favor of same-sex couples. He referred to marriage and child-rearing, declaring, ?Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.?

Dissenting in Lawrence v. Texas, Justice Antonin Scalia said that the decision ?leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.?

Charles Cooper, who served in the Reagan administration as assistant attorney general in charge of the Office of Legal Counsel, is arguing the case Tuesday for supporters of Proposition 8.

Solicitor General Donald Verrilli is arguing for the Obama administration, as a friend of the court, in opposition to Proposition 8.

Chad Griffin, a plaintiff in the case against California's Proposition 8, speaks about the importance of the day before heading to the Supreme Court Tuesday.

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This story was originally published on Tue Mar 26, 2013 4:01 AM EDT

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