Justice Kennedy Questions California Same-Sex Marriage Ban

A pivotal justice questioned California’s ban on same-sex marriage as the U.S. Supreme Court began a historic argument that could lead to gay weddings nationwide.

During early questioning in the hour-long argument, Justice Anthony Kennedy suggested that children of same-sex couples suffer “immediate legal injury” from California’s ban.

“They want their parents to have full recognition and status,” Kennedy said. “The voice of those children” is important, he said.

The California case has the potential to produce the court’s biggest civil rights ruling in decades. The argument comes as public support for gay marriage hits record levels. Nine states and the District of Columbia now let gay couples marry.

The high court, which will rule by June, has a spectrum of options. It could reinstate California’s ban and leave each state to make its own decision about letting gays marry. It could issue a narrow ruling that would create a right to same-sex marriage in California and perhaps a handful of other states. Or it could announce a constitutional right to gay marriage nationwide.

Attorney Charles J. Cooper, representing the proponents of the ban, said attitudes on gay marriage are changing rapidly, and he urged the justices to let that debate continue on the state level instead of declaring a broad right to gay marriage.

‘Considerable Disagreement’

Justice Antonin Scalia said there is “considerable disagreement” over the effects on children of having same-sex parents.

“Do you know the answer to that, whether it harms or helps the child?” Scalia said, suggesting it would be premature for the court to set a nationwide rule. “I take no position on whether it’s harmful or not.”

The case is the first of two gay-marriage arguments this week for the court, which tomorrow will take up the 1996 U.S. Defense of Marriage Act, known as DOMA. That law defines marriage as a heterosexual institution, barring legally married gay couples from claiming the federal benefits available to other married couples.

California voters approved the Proposition 8 ban on gay marriage in 2008. The ballot initiative reversed a decision by the California Supreme Court, which five months earlier had said the state constitution guaranteed the right to gay marriage.

Narrow Ruling

A federal appeals court issued a narrow ruling with limited applicability beyond California’s borders. The San Francisco-based 9th U.S. Circuit Court of Appeals said Proposition 8 violated the constitutional guarantee of equal protection by stripping same-sex couples of a right they once had -- and that heterosexual couples would continue to possess.

The justices are also considering a procedural question affecting whether they have the legal power to rule on Proposition 8 itself. The issue is whether the supporters of Proposition 8 have “standing” to defend it. California Governor Jerry Brown, then the attorney general, decided after the measure was approved to oppose it in court.

The case is Hollingsworth v. Perry, 12-144.

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