Thousands of pro-gay marriage advocates and a small number of religious protesters assembled outside the court on Tuesday while it heard arguments in the case of Hollingsworth v. Perry , which will decide upon the constitutionality of California’s gay marriage ban, Proposition 8.
Topics covered included the role of procreation in the institution of marriage, whether gay men and women constituted a “class” of people, whether a gay marriage ban could be considered gender-based discrimination and whether proponents of Proposition 8 had standing to challenge a lower court’s earlier decision that the ban was unconstitutional.
There were hints of caution among some on the bench about the prospect of too wide a ruling – such as legalising same-sex marriage across the country – with Justice Anthony Kennedy calling it “unchartered waters”.
“Same-sex marriage is very new. I think it was first adopted in Netherlands in 2000. So there isn’t a lot of data about its effect,” Kennedy said.
“We have five years of information to pose against 2,000 years of history or more.”
Many justices also seemed unmoved by the procreation arguments presented.
“There are lots of people who get married who can’t have children,” Justice Stephen Breyer said.
On Wednesday, the court heard oral arguments in United States v. Windsor which will decide upon the constitutionality of the Defense of Marriage Act (DOMA). DOMA denies federal benefits to same-sex couples.
The case concerns a same-sex couple from New York – Edith Windsor and Thea Clara Spyer – who were married in Canada in 2007, shortly before Spyer died in 2009. Windsor inherited her property but was forced to pay a tax bill of US$360,000 because their marriage was not recognised under DOMA.
A number of US politicians have reversed their support for DOMA in recent weeks in a move many see as an attempt to be on ‘the right side of history’.
An ABC News/Washington Post poll released earlier this month found 58 per cent of Americans now think it should be legal for same-sex couples to get married.
Decisions on both cases before the Supreme Court are expected to be delivered in June.
You can hear the full audio of Tuesday’s oral arguments below.