Supreme Court to hear Defense of Marriage Act, Prop. 8 cases - Tri-State News, Weather & Sports

Fate of same-sex marriage in hands of Supreme Court

Ted Olson, right, is the lawyer challenging Proposition 8, the law banning same-sex marriage in California. Olson was the solicitor general under President George W. Bush (Source: CNN) Ted Olson, right, is the lawyer challenging Proposition 8, the law banning same-sex marriage in California. Olson was the solicitor general under President George W. Bush (Source: CNN)
Charles Cooper, the lawyer arguing to uphold Proposition 8, answers questions for reporters after hearings concluded Tuesday morning. (Source: CNN) Charles Cooper, the lawyer arguing to uphold Proposition 8, answers questions for reporters after hearings concluded Tuesday morning. (Source: CNN)

(RNN) – Attorneys completed arguments on same-sex marriage and California's Proposition 8  before the U.S. Supreme Court on Tuesday.

A ruling to strike down the law could either set precedent for all states or be applied specifically to California, depending on the expansiveness of the court's decision. A federal court overturned the law in February 2012.

Justice Anthony Kennedy said throwing out California's ban on same-sex marriage would take the Supreme Court into "uncharted waters." Kennedy's vote could prove decisive in the case, and he raised questions that branched out to other issues involved - including adoption of children by same-sex couples.

It legal in California for gay and lesbian couples to adopt children.

On Wednesday, the high court will hear arguments on the constitutionality of the Defense of Marriage Act, a law signed in 1996 by then-President Bill Clinton defining marriage between a man and a woman.

The Supreme Court usually renders its decisions in writing during the final days of its sessions in late June, but has already released the audio from the hearing.

"We're not going to reargue the case out on the sidewalk, but we said everything we wanted to say," Andrew Pugno, lawyer for Protect Marriage Coalition, said. "But the court asked very probing, very thoughtful questions on both sides."

Ted Olson, lead counsel in the challenge of Proposition 8, directed the justices' attention to the 1967 Loving v. Virginia ruling. That case overturned the ban on interracial marriages, and Olson implied a ruling on same-sex unions could have the same social implications.

But he admitted it is difficult to determine what the court would decide.

"Based on the questions asked, I have no idea," Olson said. "I think one of the most important things that happened today was the fact that the American people were listening to the argument."

Questions posed by the justices gave very little indication how the court will decide and some expressed doubt that the case should be heard by court.

"You want us to assess the effect of same-sex marriage. It may turn out to be a good thing. It may turn out to be not a good thing," Justice Anthony Alito said.

Despite endorsement of same-sex marriage from the American Psychological Association and American Academy of Pediatrics, there are dissenting opinions among medical experts about the effects on children.

"I think there's substance to the point that the sociological information is new. We have five years of information to weight against 2,000 years of history or more," Kennedy said. "On the other hand, there is what could be an immediate legal injury, and that's the voice of these children. There's some 40,000 children in California, according to the read brief, that live with same-sex parents; and they want their parents to have full recognition and full status."

White House Secretary Jay Carney said President Barack Obama had been briefed about the arguments Tuesday, but he did not have a statement to issue.

Opponents of the law appear to be pushing for states to retain the right to decide the legality of gay and lesbian marriages.

"The most remarkable thing that happened in there was that there was no attempt to try to defend the ban on gay and lesbian marriage," said David Boies, a lawyer arguing against Proposition 8. "The most important constitutional right should be decided at the state level as opposed to the federal government. But it's a federal constitution we have, and it's a federal constitution that guarantees fundamental rights to every citizen in every state."

The California Supreme Court ruled the right to marry should be granted to gay and lesbian couples in 2008, but later that year voters in the state approved a ban on same-sex marriage by a 52 percent majority.

This was the first of two cases before the court this week that could determine whether same-sex couples have a constitutional right to marry.

Two issues are at stake - the federal definition of marriage and whether individual states can deny legal marriage to gays and lesbians.

United States v. Windsor, which challenges the Defense of Marriage Act, is the primary case in a handful of challenges to the 1996 federal law.

New York resident Edith "Edie" Windsor challenged the law after her married partner, Thea Spyer, died in 2009. Windsor had to pay more than $360,000 in federal taxes on Spyer's estate because the U.S. government does not give same-sex couples the same tax-exempt status as heterosexual couples, even those from states where gay marriage is legal. Same-sex marriage was legal in New York at the time.

The Defense of Marriage Act passed Congress overwhelmingly before then-President Bill Clinton signed it into law. While the law does not recognize same-sex marriages on the federal level, it allows states to legalize such unions.

Before signing the law, Clinton said that it was not intended to infringe on the rights of gays and lesbians. But he repudiated the law in an op-ed piece for the Washington Post on March 7 and called for it to be struck down.

"When I signed the bill, I included a statement with the admonition that ‘enactment of this legislation should not, despite the fierce and at times divisive rhetoric surrounding it, be understood to provide an excuse for discrimination,'" Clinton wrote in the article. "Reading those words today, I know now that, even worse than providing an excuse for discrimination, the law is itself discriminatory. It should be overturned."

The Supreme Court announced on Dec. 7 that it would hear arguments challenging the Defense of Marriage Act. That came after Republicans in the U.S. House of Representatives assumed legal arguments for DOMA in 2011 when Attorney General Eric Holder announced that President Barack Obama's administration would no longer uphold its constitutionality.

In January the House Administration Committee, chaired by Rep. Candice Miller (R-MI), approved spending up to $3 million for legal counsel in cases related to DOMA.

Multiple religious organizations representing a variety of faiths have legally filed support for DOMA and Proposition 8, among them: the U.S. Conference of Catholic Bishops, the Church of Jesus Christ of Latter-day Saints, the National Association of Evangelicals and the Family Research Council.

After Obama supported gay marriage in a televised interview in May 2012, several political leaders joined in.

Ohio Republican Sen. Rob Portman, who was a co-sponsor for DOMA and voted against allowing gay couples to adopt children, recently voiced his support. He wrote an op-ed column for the Columbus Dispatch (Ohio) saying he reversed his position because of his gay son, Will, who came out two years ago.

"I've thought a great deal about this issue, and like millions of Americans in recent years, I've changed my mind on the question of marriage for same-sex couples," Portman wrote. "As we strive as a nation to form a more perfect union, I believe all of our sons and daughters ought to have the same opportunity to experience the joy and stability of marriage."

Former Secretary of State Hillary Clinton also endorsed same-sex marriage via a recent internet video.

Public acceptance of same-sex marriage had grown before politicians started announcing their support.

Fifty percent or more of Americans said they favored legal recognition of same-sex unions in 2011 and 2012, according to Gallup polls. It was the highest approval since Gallup began conducting the survey in 1996, when support of gay marriage was 27 percent.

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