Supreme Court Justices Struggle With Federal Right to Gay Marriage

Supreme Court hears landmark gay marriage case.

ByABC News
March 25, 2013, 7:28 PM

March 26, 2013 -- Supreme Court justices seemed to struggle with the notion of extending marriage rights to same-sex couples as they grilled lawyers this morning in a potentially landmark case over California's ban on gay marriages.

As the politics change by the day, the court heard a case -- Proposition 8 -- that could drastically change how states and the federal government approach one of the touchiest social issues of the past decade.

The justices today challenged lawyers on both sides on common points of contention that arise whenever gay marriage is debated.

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All eyes were on Justice Anthony Kennedy, whose vote could be essential in the case.

At one point he talked about the children of gay couples, noting that they wanted their parents' unions to be recognized. "The voice of these children is important," Kennedy said.

But later he told the lawyer for gay couples challenging the ban that the issue was in "unchartered waters."

Kennedy also questioned whether the court should be considering Prop 8 and whether gay-marriage opponents had the legal right to defend Prop 8, after California officials declined to appeal its overturning -- raising the possibility that the Supreme Court could punt on the merits of Prop 8, declining to set a federal precedent on gay marriage in this case and deferring to a lower court's ruling to overturn California's ban.

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Justice Elena Kagan, President Obama's second appointee to the court, asked the lawyer defending California's gay marriage ban what harm would be done to heterosexual marriage if gay and lesbian marriages were legally recognized. He answered that same-sex marriage would do harm that is difficult now to foresee.

Justice Antonin Scalia, widely recognized as one of the court's more conservative justices, engaged in intense debate with pro-gay-marriage lawyer Ted Olson.

"When did it become unconstitutional to exclude homosexuals from marriage?" Scalia asked.

Some justices questioned the main argument against gay marriage, that the government has a societal interest in traditional marriage for "responsible procreation."

Kagan asked about marriage licenses issued to heterosexual couples who are older than 55. "Not a lot of children" come out of such marriages, she said.

Justice Ruth Bader Ginsburg asked about heterosexual couples locked up in prison. "No possibility of procreation there," she pointed out.

Along with another case scheduled for Wednesday, in which the court will consider a challenge to the federal Defense of Marriage Act (DOMA) ban on gay marriage, the Prop 8 case likely will lead to at least one landmark decision to be cited by advocates and opponents of same-sex marriage for decades to come.

The Supreme Court is slated to issue rulings by the end of June.

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On behalf of a California couple, Prop 8 is being challenge by the unlikely bipartisan duo of Olson and David Boies, who argued before the court on opposite sides of the 2000 case over Florida's vote recount in the presidential election between George W. Bush and Al Gore. Boies served as the top lawyer for Gore's campaign; Olson, for Bush's.

The pair was brought together by gay-rights advocates seeking to overturn California's ban, which took the gay activist community by surprise when it passed in 2008. Californians voted 52 percent to 48 percent in favor of banning gay marriage under their state constitution in 2008 on the same day they voted Barack Obama into the White House by a margin of 61 percent to 37 percent for Sen. John McCain, R-Ariz.

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Charles J. Cooper, representing a group called, argued in favor of the ban.

Supporters of Prop 8 have contended that states should be able to ban gay marriage because society has an interest in heterosexual marriage as a means of procreation.

"The definition of marriage has always been understood to be the virtually exclusive province of the states, which, subject only to clear constitutional constraints, have absolute right to prescribe the conditions upon which the marriage relation between their citizens shall be created," Cooper has said.

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Boies and Olson, meanwhile, contend that Prop 8 singles out gay couples unfairly.