Divided on unions: The U.S. Supreme Court takes up same-sex marriage

Published: Updated:

A small crowd of people has been waiting outside the United States Supreme Court building, some since Friday morning, with the hope of hearing oral arguments from the court. Those few were joined on the steps of the Supreme Court by thousands of same-sex marriage supporters as well as a sizable number of counter-protestors early Tuesday morning for the first of two landmark cases on same-sex marriage.

Though the U.S. Capitol Police would not offer an estimate to the size of the crowd, the convergence of the two opposing groups created quite a stir. Emotions on both sides were high but though police had to separate the groups, shouting over the roar of revving motorcycle engines, level heads prevailed. The real battle was being had in the courtroom.

The case before the court on Tuesday was a challenge of California’s Proposition 8. Despite the California Supreme Court’s previous ruling that a previous restriction of marriage as between a man and a woman was unconstitutional under the equal protection argument, California once again found itself in the center of debate when a 2008 constitutional amendment (Proposition 8) passed and restricted marriage once again.

Challenging California’s Proposition 8

Both Federal District and California Supreme Courts have ruled that Proposition 8 is unconstitutional and because neither the Governor of California or the state’s Solicitor General have decided to defend the amendment in court, Washington lawyer Charles J. Cooper has stood in its defense. Cooper argued Tuesday that both the biological ability to procreate as well as the role of a “traditional” household in child rearing are logical reasons to restrict marriage to heterosexual couples.

The Court’s most liberal judges pointedly confronted Cooper’s conservative stances. Justice Elena Kagan in particular believed that while such justifications might provide virtue to heterosexual marriages they do not preclude same-sex couples from marrying.

Standing opposed to Proposition 8 in court was lawyer Theodore B. Olson, who Justice Antonin Scalia challenged in kind, asking, “When did it become unconstitutional to prohibit gays from marrying?” This was a question Olson said he couldn’t accurately answer.

Somewhere in the middle lies the arguable swing vote of Justice Anthony Kennedy, who stuck to that middle ground during the oral arguments. Kennedy showed empathy to those living without legal marital status and their children, however questioned the speed at which the case came to the court.

A nation divided

Beyond the divided courtroom, however, is a nation divided on how the issue should be handled. Though the protests on Tuesday demonstrated that the issue could easily be a black-and-white yes-or-no to gay-marriage, the reality is much more nuanced.

Cooper’s argument was not for an outright ban on gay marriage, but rather that the Supreme Court recognize that a democratic vote was a legitimate way to approach the issue and in turn that the amendment should stand.

Olson, on the other hand, had a much more hopeful request that Supreme Court would both strike down the amendment and decide the question in a broad and national sense. A San Francisco judge found that equal protection under the Constitution required all same-sex couples be allowed to marry. This decision varies greatly from the U.S. Court of Appeals, which found that since the right to marry was given in California previously, it could not be taken away, but was only applicable in that state.

The Obama administration added yet another review in their opinion given to the court. In their brief, the administration stated that allowing civil unions but not same-sex marriage created a de facto separate-but-equal situation, one that was inherently unconstitutional.

When the court returns with a verdict, it could uphold any of these positions or take an entirely different course. It is possible that without the State of California itself defending the amendment, the Supreme Court could find that the issue was improperly taken up by the court, in which case, marriage licenses would be again available in California.

In a related case, the Supreme Court will evaluate the Defense of Marriage Act on Wednesday, which promises to be much less difficult of a constitutional issue. The question before the court is whether a law preventing federal recognition of same-sex unions is constitutional, a law with tax, Social Security, and other implications.

It will likely take until June for the Supreme Court to issue its decisions.


Mark Kauzlarich is an intern in Al Arabiya’s Washington, D.C. Bureau. Find his photojournalism work at www.markkauzlarich.com or follow him on Twitter at @MJKauz