(Photo: Karen Bleier, AFP/Getty Images)
by Richard Wolf, USA TODAY
WASHINGTON -- The Supreme Court may not be ready to legalize same-sex marriage from coast to coast, but almost any decision the justices reach is likely to legalize it in California.
That appeared to be the most likely outcome Tuesday after 90 minutes of intense questioning and debate inside the packed courtroom.
The case before the court focuses on California's four-year-old same-sex marriage ban, known as Proposition 8, and whether the state's voters even had the authority to appeal a lower court ruling that blocked enforcement of the ban.
While the court's liberal justices decimated many of the arguments offered by defenders of Proposition 8, and several conservative justices pounced on those presented by gay rights proponents and the Obama administration, the only possible middle ground appeared to be a minimalist decision.
There are several possibilities:
• The justices could decide that the case was improperly granted, meaning Tuesday's hearing never should have happened. That would leave intact a federal appeals court ruling that opens the floodgates to more same-sex marriages in California -- but California alone.
• The justices could decide that those bringing the case -- proponents of Proposition 8 who lost both lower court cases -- lacked standing to represent the state. Since the state had refused to defend its voter-approved law, that also would leave lower court rulings alone.
• Or they could craft some sort of compromise between liberals who seemed amenable to expanding gay marriage rights and conservatives who seemed opposed. The word used often in court Tuesday was "caution." That, too, could lead to a one-state decision.
Near the end of the debate, Justice Samuel Alito -- known for synthesizing debates and asking incisive questions -- noted that same-sex marriage has a history of just 13 years. He called it an "institution which is newer than cellphones and the Internet."
"It may turn out to be a good thing," Alito said. "It may turn out not to be a good thing."
The Obama administration had given the court another option, suggesting that gay marriage be legalized in California and the other seven states that already have approved civil unions or domestic partnerships. But both sides on the court blasted that idea. Liberal justices said it would penalize more progressive states and allow the worst state offenders to discriminate.
For the first half of the oral argument, as Proposition 8's attorney Charles Cooper struggled against tough questions from the court's liberals, it seemed the court could be leaning toward legalizing gay marriage. Justice Elena Kagan got Cooper to admit his best argument was that gays can't procreate, and then she and others said the same argument could be used against infertile couples, those 55 and over, and prisoners.
But the tide turned somewhat when Theodore Olson, a former conservative U.S. solicitor general, and current Solicitor General Donald Verrilli stood to oppose Proposition 8. Faced with the specter of court-imposed same-sex marriage from sea to shining sea, the court's conservatives -- including swing vote Anthony Kennedy -- argued for caution.
"This institution's been around since time immemorial," Chief Justice John Roberts said, while the argument being made by opponents of the gay marriage ban "is just about the label."
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