The Prop. 8 case, and a similar challenge to the federal Defense of Marriage Act scheduled for argument on Wednesday, have become flashpoints in the nation’s culture wars. The high court showdown marks the first time in more than 40 years that the justices are being asked to examine what limits, if any, the Constitution imposes on the government’s power to restrict who can – and cannot – get married.
Currently, nine states and the District of Columbia recognize same-sex marriage. Eight others grant gay and lesbian couples rights under civil partnerships.
In contrast, 31 states have amended their constitutions to ban same-sex marriage – including California via Proposition 8. A handful of other states passed statutes banning the practice.
Former Solicitor General Theodore Olson, representing two same-sex couples challenging Prop. 8, told the justices that marriage is a fundamental right of all Americans, regardless of gender. He said the exclusion of gay and lesbian couples from marriage renders them second-class citizens.
“This is a measure that walls off the institution of marriage,” he said. Getting married is not society’s right, but an individual right, he added.
“This court again and again and again has said the right to get married … is a personal right. It’s part of the right of privacy, association, liberty, and the pursuit of happiness,” Mr. Olson said.
Washington Lawyer Charles Cooper told the court that the concept of marriage as a union of one man and one woman has prevailed throughout most of human history and need not be redefined now.
Mr. Cooper, representing leaders of the Prop. 8 campaign, said the concept of marriage is at the center of an earnest national debate. “The question before this court is whether the Constitution puts a stop to that ongoing democratic debate and answers this question for all 50 states,” he said.
He urged the justices not to issue a constitutional ruling imposing same-sex marriage nationwide. Instead, he said the states should continue to be free to decide for themselves how to approach the issue.
Justice Elena Kagan wanted to know what harm would come to the institution of marriage or to opposite-sex married couples if the definition of marriage expanded to include same-sex couples.