The first day of highly anticipated hearings on the issue of same-sex marriage has ended on an uncertain note. Justices waded cautiously into the issue, which continues to divide Americans.
The nine justices that comprise the top US Supreme Court heard arguments on Tuesday in the first same-sex marriage case scheduled for this week. Rather than focusing their questions on the constitutionality of a California ban preventing homosexual partners from marrying, the court appeared to question the appropriateness of its own involvement in handing down a verdict that could affect the entire country.
Currently, only nine states and the District of Columbia allow same-sex couples to wed.
Justice Anthony Kennedy, who often holds the swing vote, joined conservative Justice Samuel Alito in citing the newness of the issue as a reason to delay handing down a decision. These partnerships have been recognized for only a few years in the some US states and in Western Europe and, therefore, the potential effects on society remained unknown.
"The problem with the case is that you're really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters," said Justice Anthony Kennedy.
On the other hand, argued Kennedy, many Americans - some 40,000 Californians, for example - already had two parents of the same gender.
"They want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?"
Justices shoot down proponents' argument
Tuesday's proceedings questioned the constitutionality of a 2008 California referendum, known as Proposition 8, which amended the State Constitution to ban gay marriage shortly after the California Supreme Court had ruled it legal.
Attorney Theodore B. Olson and David Boies represented two couples - Paul Katami and Jeff Zarrillo and Kris Perry and Sandy Tier - who are challenging the California ban on giving same sex couples the same legal status as heterosexual married couples.
Olson and Boies argued that by banning the legal status for homosexual partners, California is denying this group "equal protection of the law" promised by the US Constitution.
The lawyer for Proposition 8 proponents, Charles J. Cooper, argued that the court should uphold the ban on the basis that marriage serves the main purpose of procreation.
Liberal Justices Elena Kagan and Stephen Breyer undercut the argument.
"There are lots of people who get married who can't have children," Breyer said.
US view of issue changing rapidly
Following the hearing, lawyers for both sides appeared confident in their ability to persuade the Supreme Court justices to decide in their favor.
"We are confident where the American people are going with this," Olson told reporters outside of the court. The outcome of the case, he said, "is so valuable to so many of our citizens to be treated equally and with dignity."
The shift in the public perception of gay marriage has changed rapidly over the past decade, according to a recent poll by the Pew Forum on Religion and Public Life. About 49 percent of Americans favor changing the law on homosexual unions, compared to only 35 percent in 2001. By contrast, 44 percent continue to favour bans, a drop from 57 percent in 2001.
But Cooper told reporters that, regardless of public opinion, the issue should be decided at the state level.
"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 Supreme Court is scheduled to reconvene on Wednesday to hear a separate case concerning the constitutionality of the 1996 Defense of Marriage Act (DOMA) signed into law by President Bill Clinton. Under DOMA, marriage is defined as a legal union between one man and one woman, and thus hinders the government from offering benefits and tax breaks to same-sex couples.
kms/jr (AFP, AP, Reuters, dpa)