Thursday, March 28, 2013

Justices Show Reluctance for Broad Marriage Ruling

This morning's big front-page write-up at the Wall Street Journal, "High Court Uneasy Over Broad Ruling":
WASHINGTON—Two days of arguments on same-sex marriage revealed a Supreme Court uneasy about making sweeping moves on gay rights and holding doubts about whether the cases belonged before the justices at all.

The arguments also brought to life more familiar fissures between the court's liberal and conservative wings. On Wednesday, liberal justices suggested that a 1996 federal law denying benefits to lawfully married same-sex couples was motivated by animus against gays, while Chief Justice John Roberts, a conservative, challenged assertions that gays and lesbians need judicial protection from repressive majorities.

Justice Anthony Kennedy, seen as a pivotal vote, gave gay-marriage proponents some hope by suggesting the 1996 Defense of Marriage Act might infringe on states' rights to make their own marriage rules. That suggested at least five justices—Justice Kennedy plus the court's four liberals—might be ready to strike down the law.

But questions about whether the court could properly hear the case made it hard to predict any outcome.

Decisions are expected by late June on the Defense of Marriage Act case as well as the case the court heard Tuesday on California's 2008 voter initiative prohibiting same-sex marriage.

The arguments highlighted a point in common between the two cases. Normally, federal courts require two adverse parties before they can decide a case. Strikingly, however, both the federal and state governments agree with the plaintiffs that the challenged laws are unconstitutional, and have declined to defend them on appeal.

Other groups have stepped in to defend the laws banning gay marriage—the Republican-controlled U.S. House of Representatives for the Defense of Marriage Act and the private citizens who officially sponsored Proposition 8.

But justices of different ideological stripes were wary of litigants without clear legal standing, even though advocates on both sides were eager for vindication in a roiling culture war.

"I can't think of another instance where that's happened," said Justice Stephen Breyer, a liberal, referring to the House's intervention in the federal marriage law case. "I'm afraid of opening that door."
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