WASHINGTON -- The Supreme Court is unlikely to legalize "gay marriage" if it eventually decides to get involved in the issue, a court expert said on CBS' "Face the Nation" Aug. 8.
Although the high court's involvement in the California Proposition 8 decision could be at least a year or two away, court watchers already are guessing as to how the court would rule -- an outcome that might depend on where Justice Anthony Kennedy, the swing vote on the nine-member court, falls. Kennedy sometimes sides with the court's four-member conservative bloc and at other times with the four-member liberal bloc. It is assumed new Justice Elena Kagan will be part of the liberal bloc.
Jan Crawford, CBS News' chief legal correspondent and author of a book on the Supreme Court, called Kennedy a "human jump ball."
"And what [the plaintiffs] are asking Justice Kennedy to do, in this case, is ... he's got to grab the ball, take it down the court, slam it in the basket and shatter the backboard," Kennedy said on the CBS program. "I mean, this is something that Anthony Kennedy doesn't do. He's a very cautious justice. He doesn't like to get ahead."
On Aug. 4, U.S. District Judge Vaughn Walker overturned California's constitutional amendment that defined marriage as between one man and one woman, calling it discriminatory and ruling it violates the U.S. Constitution's equal protection and due process clauses. It is being appealed to the Ninth Circuit Court of Appeals.
Kennedy has sided with the Supreme Court's liberal bloc majority in two high-profile cases involving homosexuality in the past two decades: 2003's Lawrence v. Texas, which overturned anti-sodomy statutes nationwide, and 1996's Romer v. Evans, which reversed a Colorado constitutional amendment that had prevented enforcement of laws protecting homosexuality. He wrote the majority opinions in each case.
Crawford acknowledged Kennedy has sided with the liberal bloc on homosexuality but called it an "enormous stretch" to ask the court to reverse the marriage laws of 45 states. Only five states recognize "gay marriage."
"The same-sex ruling that [Kennedy] wrote in 2003 that struck down laws that criminalized homosexual sex -- no one was enforcing these laws," Crawford said. "This would change the law of the nation. They would be so far ahead of public opinion and that is why this case was controversial from the beginning. Remember, the traditional gay rights groups did not want [plaintiff attorney] David Boies and his conservative counterpart Ted Olson to file this case because they think the Supreme Court is not ready. They wanted to see more states pass laws allowing same-sex marriage and then take it to the court and not put that onus and that pressure on the Supreme Court. And I would not be so confident if I were David Boies."
In the '03 Lawrence v. Texas case, Kennedy wrote that the ruling was not saying "the government must give formal recognition to any relationship that homosexual persons seek to enter."
But Kennedy's track record and the lack of certainty on his position has conservatives concerned. Some, including Southern Baptist ethicist Richard Land, have said the only solution may be to pass a federal constitutional amendment defining marriage.
It is possible the Supreme Court will not take up the case at all. That becomes far more likely if Walker's ruling is overturned by the Ninth Circuit, considered one of the liberal appeals courts. Although the majority of justices on the Ninth Circuit are liberal, some are conservative. The case will be randomly assigned to a three-judge panel.
Boies, who appeared on the same program, said he remains confident about his chances before the Supreme Court.
"Remember, unlike abortion, the court is not creating a new legal right," Boies said. "This is a right that has been well recognized for a hundred years in terms of the right of individuals to marry. And all that's at issue here is can the state of California take away that right depending on the sex of your intended partner? ... Is there a rational basis for that distinction?"
Although Walker ruled there is no legitimate reason for "gay marriage" bans, other courts in the past have ruled differently, tying the interests to procreation and childrearing. For instance:
-- In 2006, after a federal judge overturned Nebraska's constitutional marriage amendment, an Eighth Circuit panel restored it, ruling that "whatever our personal views regarding this political and sociological debate, we cannot conclude that the state's justification 'lacks a rational relationship to legitimate state interests.'" That interest, the court wrote, is "to encourage heterosexual couples to bear and raise children in committed marriage relationships." Walker's opinion was far more sweeping than was the 2006 opinion by the federal judge.
-- In 2006, Washington Supreme Court Justice Barbara A. Madsen, writing for the 4-3 majority in refusing to legalize "gay marriage," said that the state legislature "was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children's biological parents."
-- In 2007, the Maryland Supreme court refused to legalize "gay marriage," with Judge Glenn T. Harrell Jr. writing for the 4-3 majority, "[V]irtually every Supreme Court case recognizing as fundamental the right to marry indicates as the basis for the conclusion the institution's inextricable link to procreation, which necessarily and biologically involves participation (in ways either intimate or remote) by a man and a woman," Harrell wrote.
Harry R. Jackson Jr., a D.C.-area pastor, made a similar argument in a CNN.com column Aug. 8 when he wrote, "It is not bigotry, it is biology that discriminates between same-sex couples and opposite-sex couples."
"A marriage requires a husband and a wife, because these unions are necessary to make new life and connect children to their mother and father," Jackson wrote.