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Conservatives Plan to Question Obama's Supreme Court Pick on Gay Marriage

Matthew Arnold-Lloyd, right, argues with an unidentified opponent of same-sex marriage last month outside the New York State Capitol in Albany. A marriage-equality bill has since passed one chamber of the legislature.
Matthew Arnold-Lloyd, right, argues with an unidentified opponent of same-sex marriage last month outside the New York State Capitol in Albany. A marriage-equality bill has since passed one chamber of the legislature. (By Mike Groll -- Associated Press)

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By Shailagh Murray
Washington Post Staff Writer
Sunday, May 17, 2009

As President Obama prepares to name his first Supreme Court justice, conservatives in Washington are making clear that his nominee will face plenty of questions during the confirmation process on the legal underpinnings of same-sex marriage.

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In addition to shedding more light on the nation's most contentious unfolding social drama and legal frontier, Senate Republicans say the debate could provide a road map to an Obama nominee's judicial philosophy.

"It may reflect the degree to which they think that they're not bound by the classical meaning of the Constitution, and that they may want to let a personal agenda go beyond what the law said," said Sen. Jeff Sessions (Ala.), the senior Republican on the Senate Judiciary Committee.

Questions on social issues in confirmation hearings have tended for the past 30 years to focus squarely on abortion, with partisans from both sides poring over a nominee's writings and rulings and presidents typically denying that any "litmus test" was employed in the selection.

Same-sex marriage carries the same freighted potential to dominate a hearing, conservatives say.

"It is now the flash point where politics and law meet. That flash point used to be abortion. I don't think anybody thinks that's going to be the flash point in this nomination," said William A. Jacobson, a Cornell University law professor and conservative blogger.

Sen. Orrin G. Hatch (Utah), another GOP member of the Judiciary Committee, said conservatives are particularly eager to avoid a Supreme Court ruling akin to the 1973 Roe v. Wade decision, which legalized abortion nationwide and has divided the country ever since. "I don't think members of the court, or any of us, ever want to see a decision like that again," Hatch said. Obama assured the senator in a recent meeting that he will not pick a "radical" to replace Souter, but Hatch added: "Presidents always say that. That's why we have the hearing process."

Same-sex marriage gained national resonance in the wake of last month's Iowa Supreme Court ruling that legalized the practice in that state. And in the two weeks since Justice David H. Souter announced his retirement, Maine also legalized same-sex marriage, becoming the fifth state to do so; the New Hampshire legislature sent a marriage-equality bill to the governor; the New York State Assembly approved gay-marriage legislation; and the District of Columbia voted to recognize same-sex marriages performed elsewhere.

Those actions, in so short a time, have outstripped the ability of Democrats in Washington to stake out their public position on the issue.

Obama has said that he personally opposes same-sex marriage, based on his Christian faith, but the White House said after the Iowa ruling that the president "believes that committed gay and lesbian couples should receive equal rights under the law."

Most Republicans and Democrats -- Obama included -- agree that individual states should determine their own marriage laws. But Congress complicated that process by approving the Defense of Marriage Act.

Rushed through by Republicans and signed by President Clinton on the eve of the 1996 election, the law allows states to ignore marriages performed in other states and denies federal recognition of legal gay marriages.


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