The court’s historic review of same-sex marriage continues Wednesday with a more limited question: May Congress withhold federal benefits from same-sex couples married in those states where it is legal? Lower courts have said that the Defense of Marriage Act of 1996 is unconstitutional because it treats legally married homosexual couples differently from heterosexual ones.
The cases have had a buildup befitting the consideration of one of the most divisive and politically charged issues in American life. Same-sex marriage did not exist anywhere in the world before 2000, and the national mood about such unions has changed so rapidly, it has left politicians and the law behind.
Inside the court’s ornate chambers, some justices wanted to slow things down.
“You want us to step in and render a decision based on an assessment of the effects of this institution, which is newer than cellphones or the Internet?” Justice Samuel A. Alito Jr. asked. “We do not have the ability to see the future.”
Even Justice Sonia Sotomayor, whose questioning indicated that she was skeptical of the reasons proffered for why gay couples should not be allowed to marry, seemed to think that it might not be time for the court to make a bold decision.
“If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?” she asked.
A ‘difficult question’
Sotomayor’s question indicated the complicated nature of the case at hand.
Washington lawyer Charles J. Cooper is representing proponents of Proposition 8 in defending the law, since California officials have refused. He said the court should respect the decision of California voters, who faced the “agonizingly difficult question” of whether to protect traditional marriage after the state Supreme Court ruled that gay couples could wed.
Theodore B. Olson, representing two California couples who want to marry, wants Proposition 8 overturned. But he is also pushing the court to find that the Constitution demands that the fundamental right to marry be extended to same-sex couples nationwide.
And Solicitor General Donald B. Verrilli Jr., representing the Obama administration, is offering something of a middle ground. He said those states — fewer than 10 — that offer gay couples benefits such as civil unions must take the next step and offer marriage.
The administration’s position drew almost no interest from the justices. And from their comments, it was difficult to locate a majority of five for either of the other options.