TOPICS > Politics

High Court Hears Challenge to Same-Sex Marriage Ban

March 26, 2013 at 12:00 AM EDT
The Supreme Court considered the constitutionality of California's Proposition 8, a ballot measure that bans same-sex marriage. Kwame Holman reports on reactions from supporters on both sides of the debate. Judy Woodruff talks to Marcia Coyle of the National Law Journal, who analyzes the arguments inside the courtroom.

GWEN IFILL: The highest court in the land took on a major social issue today, the constitutionality of same-sex marriage. The issue drew impassioned crowds for the first of two days of arguments.

NewsHour correspondent Kwame Holman begins our coverage.

PROTESTERS: What do we want? Equality! When do we want it? Now!

PROTESTER: One man and one woman! One man and one woman!

KWAME HOLMAN: The theme ranged from protests to parades to a festival atmosphere at times.

Inside the court today, the justices heard the legal arguments about whether same-sex marriage is a right protected under the Constitution, while, outside, supporters and opponents filled the streets, many holding their own debates and demonstrating the fierce passion the issue inspires.

MAN: That’s what that was about. It had nothing to do with law.

WOMAN: Man shall not lie with mankind as with womankind. It’s an abomination.

MAN: It has nothing to do with love.

KWAME HOLMAN: The specific issue today, the constitutionality of California’s Proposition 8, a 2008 ballot measure that bans same-sex marriage. The California Supreme Court upheld Prop 8 in 2009, but a federal court struck it down a year later, setting the stage for today’s U.S. Supreme Court showdown.

The hundreds who gathered for the occasion came from all over the country.

SARAH POWERS, Supporter of Same-Sex Marriage: I’m gay, and I want to have these rights. I believe, even if I wasn’t, I would want equal rights for all of us.

REV. SAMARIS GROSS, Opponent of Same-Sex Marriage: We brought 30 buses from the New York Democrats for Life organization, from Queens, Bronx, New Jersey to just voice ourselves and know and tell everyone that every child deserves to have a father and a mother.

KWAME HOLMAN: Many of those favoring same-sex marriage were couples, including Robert Voorheis and Michael Sabatino, together for 34 years.

ROBERT VOORHEIS, Supporter of Same-Sex Marriage: So many rights that we don’t have access to under the law without the rights to marry. Fortunately, in New York, we now have marriage rights. But it doesn’t transfer to the federal level.

KWAME HOLMAN: But many supporters of Proposition 8 who marched today said it wasn’t about denying rights.

Shawn Bowen is from New York.

SHAWN BOWEN, Opponent of Same-Sex Marriage: I believe that marriage is really in the context of family and children, and that’s its primary purpose, and that’s what the definition should be, and that they’re not hateful people, but they just believe something that is practical. And it really does form the foundation of where we come from.

KWAME HOLMAN: After the arguments, the principals in the case emerged to have their say.

Kris Perry and her partner are one of two California couples who challenged Proposition 8.

KRIS PERRY, Plaintiff: In this country, as children, we learn that there is a founding principle that all men and women are created equal. And we want this equality because this is a founding principle.

Unfortunately, with the passage of Proposition 8, we learned that there are a group of people in California who are not being treated equally.

KWAME HOLMAN: On the other side, Protect Marriage, the group behind Proposition 8, its legal counsel, Andrew Pugno, said the decision should be left to voters.

ANDREW PUGNO, Protect Marriage: Our position all along has been that the political process, that means state by state, states deciding for themselves, that that’s the forum where this debate belongs, and that this is not something that should be imposed by the judiciary, by the courts.

PROTESTERS: Prop 8 has got to go.

KWAME HOLMAN: Still, the issue now is before the nation’s highest court and will be again tomorrow, when the justices hear a separate case on the federal Defense of Marriage Act. That 1996 law limits marriage to one man and one woman.

JUDY WOODRUFF: Marcia Coyle of the National Law Journal was inside the court, Supreme Court, this morning, and she is back with us tonight.

Welcome back to the NewsHour.

MARCIA COYLE, National Law Journal: Thanks, Judy.

JUDY WOODRUFF: So, Marcia, this is a case that has the potential to make the history books, a momentous set of questions. Did that come across in the court?

MARCIA COYLE: Oh, I think absolutely.

Before the arguments, the courtroom was packed with public spectators, members of the bar. More than 100 reporters were seated for the arguments, reporters from a number of different countries as well. And there was a strong undercurrent of excitement. No matter what the court says, no matter how little the court says, this is the first substantive review of same-sex marriage, which some people have said is the most important civil rights issue of the day.

So, yes, I think these arguments are historic and will make the history books.

JUDY WOODRUFF: I was struck by the justices’ questions right at the outset about whether they should have even taken this case at all, and in particular Justice Kennedy got to it early on. The chief justice did.


The very first question was from the chief justice. And it had to do with whether the defenders of Proposition 8 have what we call standing to defend it. Do they have a right? Do they meet the requirements for defending Proposition 8, the federal requirements?

And that’s a really key question, because, if they don’t have standing to defend it, then the case may well be dismissed on standing grounds.

JUDY WOODRUFF: And, Marcia, looking ahead, if that were to happen, what happens to Proposition 8?

MARCIA COYLE: Well, if there is no standing, then the court is likely to vacate the lower court ruling that struck down Proposition 8.

And that leaves in place a federal district court judge’s injunction against Proposition 8. And then there will be a battle over whether that injunction still stands, what the scope of the injunction is.

JUDY WOODRUFF: We have got time to worry about that later, when we know what the court rules.

So the attorney defending Proposition 8, his name is Charles Cooper. He argued that the institution of same-sex marriage is so new that the court would be wise to use caution, at which point Justice Kennedy raised another factor. And we have got audio from the arguments, so let’s listen to one section there.

ASSOCIATE JUSTICE ANTHONY KENNEDY, U.S. Supreme Court: I think there’s — there’s substantial — that there’s substance to the point that sociological information is new.

We have five years of information to weigh against 2,000 years of history or more. On the other hand, there is an immediate legal injury or legal — what could be a legal injury, and that’s the voice of these children.

There are some 40,000 children in California, according to the red brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?

CHARLES COOPER, Attorney: Your Honor, I certainly would not dispute the importance of that consideration, that consideration especially in the political process, where this issue is being debated and will continue to be debated, certainly, in California. It’s being debated elsewhere.

But on that — on that specific question, Your Honor, there simply is no data.

JUDY WOODRUFF: What do you take away from that exchange?

MARCIA COYLE: Well, first of all, Justice Kennedy was responding to an exchange with Mr. Cooper that actually began with Justice Kagan.

She asked him, what harm is there to the institution of marriage or to opposite-sex couples if marriage were extended to include same-sex partners?

And Mr. Cooper gave kind of a general answer that, we don’t know yet. We can’t predict the future. We don’t know what harms might result. But it was Justice Scalia who interjected and said, well, I can give you a concrete one. If same-sex marriage is permitted, then states will have to recognize adoptions by same-sex couples.

And there is dispute in sociological data in studies about whether children raised by same-sex parents are harmed or not harmed. And so that is what Justice Kennedy was responding to. But that’s been one of the key arguments against Proposition 8. And I think that may have been one of Mr. Cooper’s weaker points in response to Justice Kennedy.

However, Mr. Cooper did consistently argue that these are policy questions that ought to be decided by the states, not the Supreme Court.

JUDY WOODRUFF: Marcia, there’s another noteworthy exchange a little bit later when Justice Kagan tried to pin down Mr. Cooper, the attorney defending Prop 8, about the definition of marriage. We’re going to listen to that now.

ASSOCIATE JUSTICE ELENA KAGAN, U.S. Supreme Court: Mr. Cooper, suppose a state said, because we think that the focus of marriage really should be on procreation, we’re not going to give marriage licenses anymore to any couple where both people are over the age of 55? Would that be constitutional?

CHARLES COOPER: No, Your Honor, it would not be constitutional.

JUSTICE KAGAN: Because that’s the same state interest, I would think, you know? If you’re over the age of 55, you don’t help us serve the government’s interests in regulating procreation through marriage. So why is that different?

CHARLES COOPER: Your Honor, even with respect to couples over the age of 55, it is very rare that both couples — both parties to the couple are infertile. And the traditional …

JUSTICE KAGAN: No, really, because if a couple …

I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.

CHARLES COOPER: Your Honor, society — society’s interest in responsible procreation isn’t just with respect to the procreative capacities of the couple itself.

JUDY WOODRUFF: So, where did that discourse leave everyone?

MARCIA COYLE: Well, Justice Kagan was trying to probe the logic of Mr. Cooper’s argument that procreation is the central purpose of marriage.

And Justice Breyer later also picked up on that, saying, you know, there are a lot of people who get married who don’t intend to have children.

JUDY WOODRUFF: Now, Marcia, one other exchange we want to listen to.

And this is between Ted Olson, who is the attorney challenging Prop 8, and the chief justice. And, again, this has to do with the definition of marriage. We will listen to this one.

THEODORE OLSON, Former U.S. Solicitor General: If the fundamental thing is that denying gays and lesbians the right of marriage, which is fundamental under your decisions, that is unconstitutional, if it is — if the state comes forth with certain arguments — Utah might come forth with certain justifications, California might come forth with others — but the fact is that California can’t make the arguments on adoption or child rearing or people living together because they have already made policy decisions.

So that doesn’t make them …

CHIEF JUSTICE JOHN ROBERTS, U.S. Supreme Court: So it’s just about — it’s just about the label in this case.

THEODORE OLSON: The label is like …

CHIEF JUSTICE ROBERTS: If same-sex couples have every other right, it’s just about the label.

THEODORE OLSON: The label marriage means something. Even our opponents …


If you tell — if you tell a child that somebody has to be their friend, I suppose you can force the child to say, this is my friend. But it changes the definition of what it means to be a friend. And that is, it seems to me, what supporters of Proposition 8 are saying here. You’re taking — all you’re interested in is the label, and you insist on changing the definition of the label.

JUDY WOODRUFF: So, the chief justice there really probing him on that.


This — Mr. Olson really has two purposes here. One, he is pushing the broader argument that the U.S. Constitution Equal Protection Clause does guarantee same-sex couples the right to marriage. But he also wants his clients, who are two California couples, to win. So he was saying that the arguments Mr. Cooper is making about Proposition 8 don’t hold water in California.

You can’t argue about adoption or morality, because California has already approved civil unions, so it’s made those policy decisions. But he has stressed throughout his argument that marriage means something. He said, for example, the court in Loving vs. Virginia back in 1967 could have said to interracial couples, you can’t have marriage, but you can have interracial unions.

That, he said, everybody would know is wrong. Marriage is status. It’s recognition. It’s support.

JUDY WOODRUFF: That was, of course, the case that said that interracial marriage was legal.


JUDY WOODRUFF: So, Marcia, finally, what should we take away from today and what bearing did what we heard today have on tomorrow’s case that they’re going to hear, the Defense of Marriage Act, which is that marriage — the federal law that requires that marriage be between a man and a woman?

MARCIA COYLE: Well, you know, Judy, I don’t ever predict on the basis of oral arguments. It’s way too risky.

But I will say sort of my gut reaction here to the court’s argument and questions were that they’re not ready to go as far as Mr. Olson would like, and that is to say that the U.S. Constitution does guarantee the fundamental right to marriage to same-sex couples.

They seem to be looking for either a narrower approach, as the lower federal appellate court did, or actually to dispose of the case in some way without saying anything major about same-sex marriage.

The case tomorrow is very different. It has to do with a federal law that defines marriage as between a man and a woman for all federal purposes. That’s more than 1,000 laws. And marriage, the definition of marriage, the requirements of marriage have always been a state prerogative.

So, we’re going to see whether Congress overstepped its boundaries here by legislating the federal Defense of Marriage Act.

JUDY WOODRUFF: And we will have you back tomorrow to talk about what is said in court.

MARCIA COYLE: I will be here.

JUDY WOODRUFF: Marcia Coyle, thank you.

MARCIA COYLE: My pleasure, Judy.

GWEN IFILL: You can find much more about today’s case on our website, including audio of the full arguments and reaction from the lawyers and the plaintiffs. Plus, we will have our own debate about Proposition 8 coming up.