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Supreme Court Could Avoid Ruling On Gay Marriage Ban

Evening Edition

Aired 3/26/13

Audio of arguments heard Tuesday by the Supreme Court on California's voter-approved gay marriage ban, known as Proposition 8.


Photo by Jonathan Ernst

Snow covers flowers in front of the Supreme Court building on Monday in Washington, D.C. On Tuesday, the justices hear oral arguments on the constitutionality of California's Proposition 8, which banned gay marriage.


Aired 3/25/13

WASHINGTON — The Supreme Court suggested today it could find a way out of the case over California's ban on same-sex marriage without issuing a major national ruling on whether gays have a right to marry, an issue one justice described as newer than cellphones and the Internet.

Several justices, including some liberals who seemed open to gay marriage, raised doubts during a riveting 80-minute argument that the case was properly before them. And Justice Anthony Kennedy, the potentially decisive vote on a closely divided court, suggested that the court could dismiss the case with no ruling at all.

Such an outcome would almost certainly allow gay marriages to resume in California but would have no impact elsewhere.

Kennedy said he feared the court would go into "uncharted waters" if it embraced arguments advanced by gay marriage supporters. But lawyer Theodore Olson, representing two same-sex couples, said that the court similarly ventured into the unknown in 1967 when it struck down bans on interracial marriage in 16 states.

Kennedy challenged the accuracy of that comment by noting that other countries had had interracial marriages for hundreds of years.

There was no majority apparent for any particular outcome and many doubts expressed about the arguments advanced by lawyers for the opponents of gay marriage in California, by the supporters and by the Obama administration, which is in favor of same-sex marriage rights.

Kennedy made clear he did not like the rationale of the federal appeals court that struck down Proposition 8, the California ban, even though it cited earlier opinions in favor of gay rights that Kennedy wrote.

That appeals court ruling applied only to California, where same-sex couples briefly had the right to marry before voters adopted a constitutional amendment in November 2008 that defined marriage as the union of a man and a woman.

Several members of the court also were troubled by the Obama administration's main point that when states offer same-sex couples all the rights of marriage, as California and eight other states do, they also must allow marriage.

Justice Samuel Alito described gay marriage as newer than such rapidly changing technological advances as cellphones and the Internet, and appeared to advocate a more cautious approach to the issue.

"You want us to assess the effect of same-sex marriage," Alito said to Solicitor General Donald Verrilli. "It may turn out to be a good thing. It may turn out to be not a good thing."

Charles Cooper, representing the people who helped get Proposition 8 on the ballot, ran into similar resistance over his argument that the court should uphold the ban as a valid expression of the people's will and let the vigorous political debate over gay marriage continue.

Here, Kennedy suggested that Cooper's argument did not take account of the estimated 40,000 children who have same-sex parents. "The voices of these children are important, don't you think?" Kennedy said.

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Avatar for user 'CaliforniaDefender'

CaliforniaDefender | March 26, 2013 at 12:43 p.m. ― 4 years ago

I am 110% in favor of equal rights and marriage for gay people.

However, the federal government has no right to tell California, or any soverign state, how to rule on domestic policy issues.

If the people of California want to overturn Prop 8 in the future, they will by their own will.

This is the very foundation of our Republic and Bill of Rights.

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Avatar for user 'benz72'

benz72 | March 26, 2013 at 1:41 p.m. ― 4 years ago

Do you believe the 15th amendment rightly infringes on the sovereignty of Southern states? Or is that violation of a domestic policy issue preferred by the majority of the citizens of those states (at the time the amendment was passed at least) improper?

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Avatar for user 'Peking_Duck_SD'

Peking_Duck_SD | March 26, 2013 at 1:50 p.m. ― 4 years ago

CADef., glad you support marriage equality, it's nice to hear.

The way I look at this case (being a non-lawyer, non-constitutional expert) is by peeling it back and seeing many mis-steps along the way, the first and most important one being that constitutional rights should have never been up for vote in the first place.

Here is what I see when 'peeling back the onion' :

(3) Should the Supreme Court have taken the case? It really shouldn't have reached here to begin with. If CA officials had not messed-up this could have been handled within out state as a state matter (however I DO think it important that the SCOTUS takes up DOMA which they are doing tomorrow.)

(2) The court challenges within California. These clearly showed state officials were negligent in allowing constitutional rights to be up for vote in the first place. You can't "vote away" constitutional rights. Notice that state officials did nothing when prop 8 was being qualified for the state initiative process, but then once this ended up in court none of them wanted to defend it. That brings us to the crux of this article - no state officals are defending it at the SCOTUS either - and there is question whether that role can be delegated.

This brings us to the very beginning:


We could have saved the tax payers millions in court costs, bitter politcal fights, and further discrimination against the LGBT community if state officials would have evaluated this upfront and not let constitutional rights of citizens up for a popular vote.

I hope they don't make this mistake again, our ballot process is compeltely out of hand in this state!!

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Avatar for user 'benz72'

benz72 | March 26, 2013 at 2:37 p.m. ― 4 years ago

Agree on all counts PDSD, well said.

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Avatar for user 'Missionaccomplished'

Missionaccomplished | March 26, 2013 at 4:06 p.m. ― 4 years ago

Hey NPR, nice objective reporting these last couple of days. You win this month's "Faux news fair and balanced" award.

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Avatar for user 'CaliforniaDefender'

CaliforniaDefender | March 26, 2013 at 5:12 p.m. ― 4 years ago


Why only the southern states? Every state is equal in sovereignty.

The 15th Amendment was correct in protecting the rights of all citizens to vote in federal elections. It is improperly applied to state and local elections. Furthermore, the 15th was improperly ratified as some state legislatures were still subject to US military occupation and control following the Civil War.

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Avatar for user 'CaliforniaDefender'

CaliforniaDefender | March 26, 2013 at 5:40 p.m. ― 4 years ago


Prop 8 was a constitutional amendment. Article 1 of the Declaration of Rights reads: "The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin."

Nothing about orientation, so Prop 8 technically wasn't illegal, but immoral certainly. Funny how our Constitution clearly prohibits affirmative action, yet it persists. But that is another discussion.

Unfortunately, the only way to remove Prop 8 (now Article 1, Section 7.5 of the Declaration of Rights) it is to have another constitutional amendment striking it and including orientation as a protected class.

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Avatar for user 'Missionaccomplished'

Missionaccomplished | March 26, 2013 at 7:25 p.m. ― 4 years ago

Nice going, CA Off, fifty years ago Orville Faubus and George Wallace used the same so-called "states' rights" argument.

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Avatar for user 'benz72'

benz72 | March 27, 2013 at 9:18 a.m. ― 4 years ago

CD, Southern states mentioned specifically because that is where I think the majority of the contention lay. But you are right to point out that it applies to all states equally. Do you really think it should be struck form law for inappropriate ratification?

Do you also believe that any proposition passed by popular vote can only be rescinded by another vote and not by judicial review? How do you see this working with the separation of powers?

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Avatar for user 'Peking_Duck_SD'

Peking_Duck_SD | March 27, 2013 at 10:27 a.m. ― 4 years ago

CADef, the 9th circuit ruled prop 8 IS a violation of the state constitution.

It violates the Equal Protection Clause by singling out same-sex couples for unequal treatment by taking away from them alone the right to marry.

That's not my opinion, it's the opinion of the 9th circuit court, lower court rulings in CA, and also legal scholars found the decision was based on sound constitutional principle.

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Avatar for user 'Missionaccomplished'

Missionaccomplished | March 27, 2013 at 3:49 p.m. ― 3 years, 12 months ago

Peking Quack, and so was Gavin Gotsome when he thumbed his nose at it.

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Avatar for user 'JeanMarc'

JeanMarc | March 27, 2013 at 4:06 p.m. ― 3 years, 12 months ago

Every time I turn on KPBS I hear some story about homosexuals. It is unbelievable. Why is 50% of the news coverage about homosexual issues? There are certainly other things happening in the world to report on, and the amount of coverage dedicated to homosexual issues is amazingly out of proportion.

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Avatar for user 'Peking_Duck_SD'

Peking_Duck_SD | March 27, 2013 at 4:45 p.m. ― 3 years, 12 months ago

Jean, I'm not sure if you are talking about in general or this week.

If you are talking about this week, I have actually been a little disappointed with the coverage of KPBS compared to their sister station in Los Angeles, KPCC.

I have been back and forth between LA and SD this week for business purposes and also listening to both on podcast, and KPCC carried the oral arguments in their entirety live yesterday and had more in-depth coverage in general on the cases.

These two cases are pretty significant, I think they warrant the coverage.

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Avatar for user 'Peking_Duck_SD'

Peking_Duck_SD | March 27, 2013 at 4:47 p.m. ― 3 years, 12 months ago

Carried live not meaning as they were happening at the SCOTUS, the arguments were recorded, but they carried them live on their station from 11:00a.m. onwards.

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Avatar for user 'Missionaccomplished'

Missionaccomplished | March 28, 2013 at 12:04 a.m. ― 3 years, 12 months ago

@JEAN MARC, answer: $.

Oh, people can whine about corporate sponsors of commercial radio /TV and the lack of objectivity, all they want.

When it comes down to it, it's no different here.

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Avatar for user 'JanusVI'

JanusVI | April 2, 2013 at 11:52 p.m. ― 3 years, 11 months ago

My neighbor wants to marry his son,

Do you guys think the Supreme Court Ruling On Gay Marriage help him reach his goal?

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