Supreme Court justices seemed skeptical of creating a new federal right to same-sex marriage 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.
Justice Elana Kagan, President Obama's second appointee to the court, asked the lawyer defending California's 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, pressed pro-gay-marriage lawyer Ted Olson to explain when it became unconstitutional for states to define marriage as heterosexual.
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.
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.
Charles J. Cooper, representing a group called Protectmarriage.com, 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.
Boies and Olson, meanwhile, contend that Prop 8 singles out gay couples unfairly.
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