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| Justices Set to Weigh Ban on Gay Marriage in California | |
| (about 3 hours later) | |
| The Supreme Court will hear arguments on Tuesday morning on the meaning of marriage. | The Supreme Court will hear arguments on Tuesday morning on the meaning of marriage. |
| Two California couples challenging Proposition 8, the state’s ban on same-sex marriage, say it excludes gay and lesbian couples from an institution with a deep and distinctive meaning and thus violates the Constitution’s guarantee of equal protection. | Two California couples challenging Proposition 8, the state’s ban on same-sex marriage, say it excludes gay and lesbian couples from an institution with a deep and distinctive meaning and thus violates the Constitution’s guarantee of equal protection. |
| Defenders of the ban say that states should be able to work out for themselves whether to permit same-sex marriage. The Constitution is silent on the question, they say, and the court should not intervene in the vigorous debate playing out across the nation. | Defenders of the ban say that states should be able to work out for themselves whether to permit same-sex marriage. The Constitution is silent on the question, they say, and the court should not intervene in the vigorous debate playing out across the nation. |
| Nine states and the District of Columbia allow gay and lesbian couples to marry. Polls show that a majority of Americans support same-sex marriage, suggesting that further gains are likely in state legislatures and at the ballot box. | Nine states and the District of Columbia allow gay and lesbian couples to marry. Polls show that a majority of Americans support same-sex marriage, suggesting that further gains are likely in state legislatures and at the ballot box. |
| The trends lend support to both sides. The ban’s challengers ask the court to provide leadership in cementing victories in what they call the civil rights issue of the day. Its defenders counter that the increase in the number of states that allow same-sex marriage shows that the democratic process is working and that the court should not interfere. | The trends lend support to both sides. The ban’s challengers ask the court to provide leadership in cementing victories in what they call the civil rights issue of the day. Its defenders counter that the increase in the number of states that allow same-sex marriage shows that the democratic process is working and that the court should not interfere. |
| The case, Hollingsworth v. Perry, No. 12-144, was filed in 2009 by Theodore B. Olson and David Boies, two lawyers who were on opposite sides in the Supreme Court’s decision in Bush v. Gore, which settled the 2000 presidential election. They argued that California voters had violated the federal Constitution the previous year when they approved Proposition 8, overriding a decision of the state’s Supreme Court allowing same-sex marriages. | The case, Hollingsworth v. Perry, No. 12-144, was filed in 2009 by Theodore B. Olson and David Boies, two lawyers who were on opposite sides in the Supreme Court’s decision in Bush v. Gore, which settled the 2000 presidential election. They argued that California voters had violated the federal Constitution the previous year when they approved Proposition 8, overriding a decision of the state’s Supreme Court allowing same-sex marriages. |
| Judge Vaughn R. Walker of the Federal District Court in San Francisco agreed, issuing a broad decision that said the Constitution required the state to allow same-sex couples to marry. The decision has been stayed. | Judge Vaughn R. Walker of the Federal District Court in San Francisco agreed, issuing a broad decision that said the Constitution required the state to allow same-sex couples to marry. The decision has been stayed. |
| A divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, also in San Francisco, affirmed the decision. But the majority relied on a narrower ground, saying that voters were not permitted to withdraw the right to marry once it had been established by the state Supreme Court. The logic of the ruling was thus confined to California. | A divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, also in San Francisco, affirmed the decision. But the majority relied on a narrower ground, saying that voters were not permitted to withdraw the right to marry once it had been established by the state Supreme Court. The logic of the ruling was thus confined to California. |
| The decision of the appeals court seemed calculated to avoid Supreme Court review or, at least, attract the vote of Justice Anthony M. Kennedy, the presumed swing member of that court. The first gambit failed, and the fate of the second is an open question. | The decision of the appeals court seemed calculated to avoid Supreme Court review or, at least, attract the vote of Justice Anthony M. Kennedy, the presumed swing member of that court. The first gambit failed, and the fate of the second is an open question. |
| “We do not doubt the importance of the more general questions presented to us concerning the rights of same-sex couples to marry, nor do we doubt that these questions will likely be resolved in other states, and for the nation as a whole, by other courts,” Judge Stephen R. Reinhardt wrote for the majority. | “We do not doubt the importance of the more general questions presented to us concerning the rights of same-sex couples to marry, nor do we doubt that these questions will likely be resolved in other states, and for the nation as a whole, by other courts,” Judge Stephen R. Reinhardt wrote for the majority. |
| “For now,” he added, “it suffices to conclude that the people of California may not, consistent with the federal Constitution, add to their state Constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the state and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class.” | “For now,” he added, “it suffices to conclude that the people of California may not, consistent with the federal Constitution, add to their state Constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the state and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class.” |
| In urging the Supreme Court to strike down Proposition 8, the Obama administration suggested another path that would not immediately lead to requiring same-sex marriage throughout the nation. The administration argued that the court could require same-sex marriage in the eight states that provide committed gay and lesbian couples with all of the legal benefits and burdens of marriage through civil unions or domestic partnerships but withhold only the name “marriage.” | In urging the Supreme Court to strike down Proposition 8, the Obama administration suggested another path that would not immediately lead to requiring same-sex marriage throughout the nation. The administration argued that the court could require same-sex marriage in the eight states that provide committed gay and lesbian couples with all of the legal benefits and burdens of marriage through civil unions or domestic partnerships but withhold only the name “marriage.” |
| This theory seems to apply to California and seven other states: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. | This theory seems to apply to California and seven other states: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. |
| The Supreme Court has other options, too. It could establish a constitutional right to same-sex marriage that would apply to all 50 states. It could continue to leave the issue to individual states. Or it could duck a decision on the merits by finding that the parties who filed the appeal, proponents of Proposition 8, were not injured directly enough by the ruling striking down the ban to have standing to appeal. | The Supreme Court has other options, too. It could establish a constitutional right to same-sex marriage that would apply to all 50 states. It could continue to leave the issue to individual states. Or it could duck a decision on the merits by finding that the parties who filed the appeal, proponents of Proposition 8, were not injured directly enough by the ruling striking down the ban to have standing to appeal. |