Law News
US Supreme Court divided on gay marriage

The US Supreme Court appeared divided Tuesday on whether gay couples have a constitutional right to wed — as it weighs a decision that could see same-sex marriage recognized nationwide.

Hundreds of activists from both sides of the debate rallied in front of the court building as the nine justices heard the case on one of the most divisive social issues in the United States.

Gay rights activists, including some of the plaintiffs, unfurled the rainbow flag of their movement and held signs proclaiming: “Marriage is our constitutional right.”

The start of the hearing of two-and-a-half hours was also marked by the sound of a spectator screaming: “Homo sex is an abomination to God.”

The court appeared to split along its usual ideological divide, with four progressive judges seeming to favor President Barack Obama’s administration call for what Justice Ruth Ginsburg called a “change in the institution of marriage.”

But the chief justice, John Roberts, was worried about changing a long-standing conception of the institution of marriage.

“We’re seeking to change what the institution is,” he said, warning the plaintiffs’ counsel: “If you prevail, there will be no debate, closing the case is closing the debate.”

Justice Anthony Kennedy, seen as a likely swing vote in the case, stressed it would be difficult to change the traditional notion of marriage as a union between a man and woman.

But he also noted that “same-sex marriage can’t have a more noble purpose… We can’t procreate but we too have a dignity that we want to fulfill.”

Conservative Justice Antonin Scalia stressed that he was not aware that any country had legalized gay unions before the Netherlands in 2001.

Supporting the gay couples who brought the case, Solicitor General Donald Verrilli argued for the Obama administration.

“In a world where gay and lesbians live openly as our neighbors, it’s simply untenable that they should be denied or that they should wait,” he said.

“They deserve the equal protection of the law and they deserve it now. The issue is not whether or not there should be same-sex marriage, but who should decide.”

– Historic decision –

Thousands of Americans protested over the weekend in Washington, with some camping out in front of the court to ensure a seat in the courtroom come Tuesday.

People queued for a chance to hear just three minutes of the arguments, since public seating is handed out on a rotating basis.

Experts say recognition of same-sex marriage — legal in 37 of the country’s 50 states and in the capital Washington, but not recognized everywhere — seems inevitable.

The justices, who are due to hand down their ruling in about two months, “really hold our lives in their hands,” said Colleen Condon, who recently married another woman.

Condon, 44, traveled from Charleston, South Carolina to watch the proceedings. The gay lawyer’s marriage is under appeal in the state.

The court heard from plaintiffs from four states — Ohio, Michigan, Tennessee and Kentucky — where gay marriage is still barred.

Supported by the Obama administration, the 16 plaintiffs want their marriages to be recognised as constitutionally protected in all US states.

Their home states currently define marriage as being between a man and a woman, and do not recognize gay marriages carried out elsewhere in the country.

If the Supreme Court rules on this it will thus make a de facto decision against all 13 states banning gay marriage.

At issue is the Supreme Court’s interpretation of the 14th Amendment of the Constitution, which provides for equal protection under the law.

Justices must decide if this amendment means states are required to recognize marriages that were conducted in other states.

In a landmark decision in June 2013, the court struck down a law denying federal benefits to homosexual couples.

But it stopped short of endorsing same-sex marriage nationwide, leaving that question to states — even though the court traditionally protects federalist principles.

– Who can be married? –

The four states involved, which are backed by religious and conservative organizations, argue that marriage is based on the biological compatibility of a man and woman.

But the Michigan plaintiffs argue that “whatever limits may be imposed on the right to marry, the gender of the partners cannot be one of them.”

They also maintain that the four states in question violate their freedom to travel by refusing to recognize legal marriages carried out in other states.

Despite its five-to-four conservative majority, the court has largely sided in favor of same-sex couples in recent years.

In a sign of the case’s divisive nature, a record of more than 150 briefs — 20 by the parties and 130 amicus curiae or “friend of the court” briefs — have been filed ahead of the hearing.


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