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Supreme Court Hears First Of Two Same-Sex Marriage Ban Cases

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As the Supreme Court heard oral arguments Tuesday in the case against Proposition 8, California's same-sex marriage ban, some New Yorkers told NY1 that they would support a nationwide bill for marriage equality.

The two couples challenging Proposition 8, which was approved by California voters in 2008, want to see the high court strike it down.

Supporters of Prop 8 say the justices should respect the decision of California voters and let the issue of gay marriage be decided by voters or lawmakers, not the courts.

Several justices raised questions Tuesday about whether the case should be before them, leaving open the possibility that the case could be dismissed without a ruling.

The justices wondered whether now is the time to decide whether gays and lesbians have the constitutional right to marry.

"We have five years of information to weigh against 2,000 years of history or more," said Justice Anthony Kennedy.

Theodore Olson, a lawyer for opponents of Prop 8, argued the ban "walls off" gays and lesbians from a critical institution.

Olson also dismissed claims that ruling on the issue now was moving into "uncharted waters".

"It was uncharted waters when this court, in 1967, in the Loving decision, said that interracial, prohibitions on interracial marriages, which still existed in 16 states, were unconstitutional," Olson said.

There is also the issue, since the state of California is no longer defending Prop 8, of whether the ban's supporters have the legal standing to bring the case before the court.

The hearing got somewhat heated when Justice Antonin Scalia asked Olson to tell him exactly when excluding homosexuals from marriage became unconstitutional in the U.S.

Scalia: Eighteen-sixty-eight, when the 14th Amendment was adopted? Sometime after Baker, where we said it didn't raise a substantial federal question. When did the law become this?
Olson: May I answer this in the form of a rhetorical question. When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate...
Scalia: Easy question, I think, for that one.

Other justices seemed more sympathetic to the argument that legislation like Prop 8 treats same-sex couples as second-class citizens.

Kennedy, a key swing vote in the court, said children who are adopted by same-sex couples in California want their parents to have the recognition of marriage.

After the hearing wrapped up, the two attorneys for Prop 8's opponents, Olson and David Boies, said they were just happy that the case was heard.

"There were a number of thoughtful and tough questions from both sides. It's now in the hands of the Supreme Court," said Boies. "It has been a long journey here for the last two-and-a-half years and I think we're all greatly encouraged that we are within a few months of a final decision on this terribly important case."

"People are going to be able to listen to these arguments and decide for themselves. We are confident where the American people are going with this," said Olson. "We don't know for sure what the United States Supreme Court is going to do, but we're very, very gratified that they listened, they heard, they asked hard questions and there's no denying where the right is."

Supporters of the ban, however, argued that same-sex unions are different.

"We are saying the interest in marriage, and the state's interest and society's interest in what we have framed as responsible procreation, is vital," said Charles Cooper, a lawyer for Prop 8 supporters.

That reasoning drew criticism from liberal justices.

"I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage," said Justice Elena Kagan.

Large numbers of people on both sides of the issue rallied outside the Supreme Court during the proceedings.

On Wednesday, the justices will hear a challenge to the 1996 Defense Of Marriage Act, which defines marriage as a union between a man and a woman.

It also prevents legally married gay couples from receiving a range of benefits available to heterosexual married couples.

The case was filed by Edith Windsor, and 83-year-old New Yorker who was forced to pay $363,000 in federal estate taxes on property she inherited from her wife, Thea Spyer, who died in 2009.

Windsor says that is not something a surviving heterosexual spouse would have to deal with.

Bill Clinton, who signed DOMA into law when he was president, said recently he thinks it should be repealed.

The justices are not expected to make any rulings until June.

Some New Yorkers Favor National Marriage Equality

Same-sex marriage is currently legal in nine states and the District of Columbia, and it has been legal in New York State since 2011.

New Yorkers who spoke with NY1 near the City Clerk's Office in Lower Manhattan were overwhelmingly in favor of gay marriage and many said they would like to see same sex-marriage legalized nationwide.

"Today I'm going to perform my wedding witness duties with a gay couple. It's a beautiful thing and it's right and it's equal and I feel very lucky to have this opportunity," said a New Yorker.

"Whichever way they can get their rights is the way I want it to go," said another. "They're people too. They deserve to have rights and choose who they want to love, just like everybody else."

Others said they want marriage to have a more traditional definition.

One opponent of same-sex marriage said, "It's supposed to be a man and a woman. It's not supposed to be a woman and a woman or a man and a man. I mean, everybody should be happy, but still, it's blasphemy."

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