After 80 minutes of oral arguments today on the case of Hollingsworth v. Perry, which challenges
California’s controversial ban on same-sex marriage, Proposition 8, members of the U.S. Supreme Court gave little inclination as to which
direction they will head.
U.S. Justice Anthony Kennedy, who is
largely considered the swing vote, called the prospect of same-sex
marriage “unchartered waters.”
If the high court dismissed the case, a federal appeals court ruling repealing Proposition 8, which placed a ban on same-sex marriage in the state, would take precedence, allowing for gay marriages to take place in the state.
Tomorrow, the Supreme Court will hear arguments for and
against the 1996 federal Defense of Marriage Act (DOMA), which defines a
“spouse” as “a person of the opposite sex who is a husband or a wife”
and thus must be interpreted that way by federal agencies. Same-sex
couples, regardless of whether their state has legalized gay marriage, don’t qualify for things like survivor’s benefits from Social
Rulings are expected by the end of June for both cases.
Thousands of demonstrators campaigned for both sides of the gay marriage debate outside the court. Some of those demonstrators, many of whom camped out for five days, were able to sit in on the oral arguments.
"This institution's been around since time immemorial," said Chief Justice John Roberts regarding the institution of marriage between men and women.
Kennedy noted that there are nearly 40,000 children in California coming from same-sex homes who would likely want equal rights for their parents.
"The voice of the children is important, don't you think,'' Kennedy asked.
Justice Antonin Scalia countered, saying "there is no satisfactory answer at this point in time" whether same-sex marriage can be harmful to children.
But Theodore Olson, the conservative former U.S. solicitor general and lead attorney for the case against Proposition 8, said he didn't know which way the judges were headed.
"We are confident with where the American people are going with this,''
Olson said. "We
don't know where the Supreme Court is going.''
Increasing from 46 percent last July, 53 percent of Americans now say it should be legal for same-sex couples to marry, according to a CBS News poll released today.
An audio recording and transcripts of today's oral arguments are available here.