ADAM LIPTAK & SCOTT SHANE
As the Supreme Court on Tuesday weighed the very meaning of marriage,several justices seemed to have developed a case of buyers remorse about the case before them. Some wondered aloud if the court had moved too fast to address whether gay and lesbian couples have a constitutional right to marry.
I just wonder if this case was properly granted, said Justice Anthony M Kennedy,who probably holds the decisive vote. Justice Sonia Sotomayor said there may be value in letting states continue to experiment. Why is taking a case now the answer? she asked.
Addressing the merits of the case during the first of two days of arguments on same-sex marriage,Justice Kennedy voiced sympathy for children of gay and lesbian couples.
Theres some 40,000 children in California that live with same-sex parents, he said,as the justices debated Proposition 8,which banned same-sex marriage. They want their parents to have full recognition and full status. The voice of those children is important.
But Justice Kennedy also spoke of uncertainty about the consequences for society allowing same-sex marriages. We have five years of information to pose against 2,000 years of history or more, he said,speaking of the long history of traditional marriage and the brief experience allowing gay men and lesbians to marry in some states.
Justice Samuel A Alito Jr said the court should not move too fast.
You want us to step in and assess the effects of this institution,which is newer than cellphones and/or the Internet? he said.
Many of the questions directed to Charles J Cooper,a lawyer for opponents of same-sex marriage,concerned whether there was any good reason to exclude same-sex couples from the institution.
Justice Elena Kagan,for instance,asked how letting gay and lesbian couples marry harmed traditional marriages. How does this cause and effect work? she asked.
Cooper said the states interest and societys interest in what we have framed as responsible procreation is vital.
Theodore B Olson,representing the bans challengers,said Californias ban on same-sex marriage walls off gays and lesbians from marriage,the most important relationship in life.
Cooper avoided a direct attack on same-sex marriage,which has rapidly gained public support in recent years. Instead,he argued there was already under way a lively,democratic debate over the age-old definition of marriage and suggested the court should not interrupt it.
There was also an extended discussion of a preliminary issue: whether plaintiffs in the case actually have legal standing to challenge the state court ruling that overturned Proposition 8,the ballot initiative banning same-sex marriage.
Nine states and Columbia allow same-sex marriages. Polls show a majority of Americans support same-sex marriage,suggesting that further gains are likely in state legislatures and at the ballot box.