Justices Show Reluctance for Broad Marriage Ruling

U.S. | MAR 28, 2013, 09:33 AM GMT+08:00
Justices Show Reluctance for Broad Marriage Ruling
By Jess Bravin

WASHINGTON—Two days of arguments on same-sex marriage revealed a Supreme Court uneasy about making sweeping moves on gay rights and holding doubts about whether the cases belonged before the justices at all.

The arguments also brought to life more familiar fissures between the court's liberal and conservative wings. On Wednesday, liberal justices suggested that a 1996 federal law denying benefits to lawfully married same-sex couples was motivated by animus against gays, while Chief Justice John Roberts, a conservative, challenged assertions that gays and lesbians need judicial protection from repressive majorities.

Justice Anthony Kennedy, seen as a pivotal vote, gave gay-marriage proponents some hope by suggesting the 1996 Defense of Marriage Act might infringe on states' rights to make their own marriage rules. That suggested at least five justices—Justice Kennedy plus the court's four liberals—might be ready to strike down the law.

But questions about whether the court could properly hear the case made it hard to predict any outcome.

Decisions are expected by late June on the Defense of Marriage Act case as well as the case the court heard Tuesday on California's 2008 voter initiative prohibiting same-sex marriage.

The arguments highlighted a point in common between the two cases. Normally, federal courts require two adverse parties before they can decide a case. Strikingly, however, both the federal and state governments agree with the plaintiffs that the challenged laws are unconstitutional, and have declined to defend them on appeal.

Other groups have stepped in to defend the laws banning gay marriage—the Republican-controlled U.S. House of Representatives for the Defense of Marriage Act and the private citizens who officially sponsored Proposition 8.

But justices of different ideological stripes were wary of litigants without clear legal standing, even though advocates on both sides were eager for vindication in a roiling culture war.

"I can't think of another instance where that's happened," said Justice Stephen Breyer, a liberal, referring to the House's intervention in the federal marriage law case. "I'm afraid of opening that door."

The Obama administration calls the Defense of Marriage Act unconstitutional, agreeing with the ruling of lower federal courts.

Nonetheless, it asked the Supreme Court to approve those rulings, an additional level of review Deputy Solicitor General Sri Srinivasan said reflected the administration's "respect" for the judiciary's role.

Chief Justice Roberts called that stance "totally unprecedented," in one of several remarks criticizing the Obama administration.

If the justices decide that neither the Obama administration nor the House had reason to bring the federal marriage case before the high court, that would keep in place two lower-court rulings nullifying the law.

Although it would create no precedent on sexual-orientation discrimination, such an outcome likely would lead the Obama administration to cease enforcement of the Defense of Marriage Act, effectively extending federal marriage benefits to same-sex spouses in states that recognize such status, currently nine plus the District of Columbia, as well as for spouses of federal employees.

Moreover, more than 1,000 federal laws in some way affect people based on marital status.

A similar outcome in the Proposition 8 case, finding that the initiative's sponsors lack standing to appeal a federal district court ruling, would nullify California's gay marriage ban without providing the U.S. Supreme Court's guidance on the core constitutional issues.

Should the justices take that path, they will defer their own entry into the culture wars over marriage, perhaps for years. And when the next same-sex marriage case arrives, a national consensus on the issue could be clearer. To be sure, the justices could end up brushing aside the concerns about legal standing and end up ruling on the merits of the case. Even then, the court seemed to lean toward cautious language rather than a ringing declaration about the Constitution's guarantee of equal protection as applied to gays and lesbians. Roberta Kaplan, the lawyer challenging the Defense of Marriage Act, argued that gays were the type of long-oppressed minority group that the court has traditionally acted to protect. "No other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way gay people have," Ms. Kaplan said. "Until 1990, gay people were not allowed to enter this country."

But Chief Justice Roberts didn't accept that assertion.

"You don't doubt that the lobby supporting the enactment of same sex-marriage laws in different states is politically powerful, do you?" he told Ms. Kaplan. "As far as I can tell, political figures are falling over themselves to endorse your side of the case."

Justice Elena Kagan quoted from a House report from 1996 when Congress passed the Defense of Marriage Act. The report said the law was intended "to express moral disapproval of homosexuality," she said, eliciting a gasp from the spectators' gallery.

"If that's enough to invalidate the statute, then you should invalidate the statute," replied lawyer Paul Clement, who was defending the law. But the motivations of lawmakers shouldn't matter, he continued, if the measure was justifiable for other reasons, such as establishing a uniform definition of marriage for federal benefit purposes.

When Justice Kennedy expressed concerns about the Defense of Marriage Act, he did so on grounds of states' rights, not equal protection. The law poses a "real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody," Justice Kennedy told Mr. Clement.

Mr. Clement disagreed, saying that the law simply clarified the meaning of marriage for federal purposes, without supplanting separate state law.

And on this point, Mr. Clement's principal adversary, Solicitor General Donald Verrilli, agreed. Typically for government lawyers, Mr. Verrilli resisted conceding that the federal government categorically lacked authority to legislate in a particular field.

Mr. Verrilli repeatedly tried to lead the discussion into the Constitution's equal-protection principles, only to be drawn back by justices who were seeking other grounds to evaluate the law.

Write to Jess Bravin at jess.bravin@wsj.com

Corrections & Amplifications The 'Shifting Support' chart had incorrect figures with an earlier version of this article. It incorrectly said 32 current members of Congress voted against the bill (31 Democrats, one independent) and 99 for it (40 Democrats, 59 Republicans), with 32 of those now supporting same-sex marriage. The correct figures are 29 voted against (28 Democrat, one independent) and 87 for (36 Democrats, 51 Republicans), with 29 of those now supporting same-sex marriage.