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Supreme Court could avoid ruling on gay marriage ban

By: MARK SHERMAN, Associated Press
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Court grounds packed on first day of marriage case 

By JESSICA GRESKO,Associated Press
WASHINGTON — They mostly kept their distance, these supporters and opponents of gay marriage, as they massed Tuesday in front of the stately Supreme Court to proclaim with signs and sayings their conflicting views about a cutting-edge issue now in the hands of America's top jurists.
 
People who favor legalizing same-sex marriage carried pictures of gay weddings and families and held signs that read "marriage is a constitutional right." They waved American and rainbow flags as the nine justices began hearing two days of arguments in gay marriage cases.
 
For their part, opponents staked out a roadway in front of the court, hoisting placards, including one exclaiming, "Every child deserves a mom & dad" and another exhorting: "Vote for holy matrimony." And members of the crowd shouted out, "Equal justice under the law," the motto inscribed on the face of the marbled court building.
 
By the time the court began with its proceeding the sidewalk outside the court was packed and supporters spilled over to the other side of the roadway. "Gay, straight, black, white, marriage is a civil right," the crowd chanted at one point, followed by "we honor this moment with love." Many supporters of gay marriage came with homemade signs including ones that read "a more perfect union," ''love is love," and "'I do!' want 2 B (equals)" Some signs had pictures of gay couples. "Together 34 years," read one, "married with pride," said another.
 
Actor-director Rob Reiner, who helped lead the fight against California's Proposition 8, was at the head of the line. Some people had waited since last Thursday — even through light snow — for coveted seats to hear the argument.
 
Gahan Kelley and Bonnie Nemeth, both 69, of Richmond, Va., came holding matching signs with their California marriage license on one side and a picture of their wedding ceremony on the other. The couple got married in California during the 142 days when it was legal. The women, who have been together, for 35 years, said they've been to many demonstrations but that being at the Supreme Court was special.
 
"This decision can change our lives tremendously," said Kelley, who talked about the ability to get Social Security benefits and inheritance laws.
 
Nemeth said she was hopeful that the court would support gay marriage.
 
"I really think we're going to win," she said.
 
Supporters of gay marriage were initially the majority of the crowd standing outside the court, but a smaller group stood holding signs backing traditional marriage. Mike Krzywonos, 57, of Pawtucket, R.I., wore a button that read "marriage 1 man + 1 woman." Krzywonos, a retired metal worker said his group is the "silent majority."
 
"The whole country does not want this," he said as helped hold a sign that read, "just because you don't get it does not give you the right to change it."
 
The crowd of opponents swelled just as the court began considering the case not long after 10 a.m. EDT. Opponents staged a march down the street in front of the court as supporters stood on both sides of the roadway. Some conversations between the two sides got heated, even with police escorting the group. Austin Ruse, 56, was one of the people who exchanged words with the other side, asking two women supporting same-sex marriage whether a man should be allowed to marry his adult son.
 
"If anyone can get married then marriage has no meaning," Ruse said later.
 
Christine Clark, 47, of Pittsfield, Pa., was participating in the march with her teenage children and their cousin. She said she knows and loves gay people but does not believe in gay marriage.
 
"We're not hating," said her daughter, Lydia Clark, 13.
 
Outside the court after the argument had concluded, attorney Ted Olson, a former solicitor general, put his arm around David Boies, as the two addressed reporters and stood next to the two couples involved in the case. Boies called the arguments a "very thoughtful hearing."
 
Asked if the court was ready to make a sweeping ruling Olson said he had "no idea."
 
"The court never gives you an idea of how they're going to decide and they didn't today," he said. But Olson said that public support is in favor of same sex marriage.
 
"We are confident where the American people are going with this," he said. "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 and we hope that the Supreme Court will come out in that way when they make this decision in June."
 
The court will consider a second case involving the federal Defense of Marriage Act, which defines marriage as between a man and a woman, on Wednesday.

WASHINGTON (AP) — The Supreme Court suggested Tuesday it could find a way out of the case over California's ban on same-sex marriage without issuing a major national ruling on whether America's gays have a right to marry.

Several justices, including some liberals who seemed open to gay marriage, raised doubts during a riveting 80-minute argument that the case should even be before them. And Justice Anthony Kennedy, the potentially decisive vote on a closely divided court, suggested that the court could dismiss it with no ruling at all.
 
Such an outcome would almost certainly allow gay marriages to resume in California but would have no impact elsewhere.
 
Kennedy said he feared the court would go into "uncharted waters" if it embraced arguments advanced by gay marriage supporters. But lawyer Theodore Olson, representing two same-sex couples, said that the court similarly ventured into the unknown in 1967 when it struck down bans on interracial marriage in 16 states.
 
Kennedy challenged the accuracy of that comment by noting that other countries had had interracial marriages for hundreds of years.
 
There was no majority apparent for any particular outcome and many doubts expressed about the arguments advanced by lawyers for the opponents of gay marriage in California, by the supporters and by the Obama administration, which is in favor of same-sex marriage rights.
 
Kennedy made clear he did not like the rationale of the federal appeals court that struck down Proposition 8, the California ban, even though it cited earlier opinions in favor of gay rights that Kennedy wrote.
 
That appeals court ruling applied only to California, where same-sex couples briefly had the right to marry before voters adopted a constitutional amendment in November 2008 that defined marriage as the union of a man and a woman.
 
Several members of the court also were troubled by the Obama administration's main point that when states offer same-sex couples civil union rights of marriage, as California and eight other states do, they also must allow marriage. The other states are: Colorado, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island.
 
Justice Samuel Alito described gay marriage as newer than such rapidly changing technological advances as cellphones and the Internet, and appeared to advocate a more cautious approach to the issue.
 
"You want us to assess the effect of same-sex marriage," Alito said to Solicitor General Donald Verrilli. "It may turn out to be a good thing. It may turn out to be not a good thing."
 
Charles Cooper, representing the people who helped get Proposition 8 on the ballot, ran into similar resistance over his argument that the court should uphold the ban as a valid expression of the people's will and let the vigorous political debate over gay marriage continue.
 
Here, Kennedy suggested that Cooper's argument did not take account of the estimated 40,000 children who have same-sex parents. "The voices of these children are important, don't you think?" Kennedy said.
 
If the court is to find the exit without making a decision about gay marriage, it has two basic options.
 
It could rule that the gay marriage opponents have no right, or legal standing, to defend Proposition 8 in court. Such an outcome also would leave in place the trial court decision in favor of the two same-sex couples who sued for the right to marry. On a practical level, California officials probably would order county clerks across the state to begin issuing marriage licenses to gay and lesbian couples, although some more conservative counties might object.
 
Chief Justice John Roberts and Justice Ruth Bader Ginsburg had the sharpest questions for Cooper on the issue of standing.
 
The justices also could determine that they should not have agreed to hear the case in the first place, as happens a couple of times a term on average. In that situation, the court issues a one-sentence order dismissing the case "as improvidently granted." The effect is to leave in place the appeals court ruling, which in the case of Proposition 8, applies only to California. The appeals court also voted to strike down the ban, but on somewhat different grounds than the trial court.
 
The Supreme Court waded into the fight over same-sex marriage at a time when public opinion is shifting rapidly in favor of permitting gay and lesbian couples to wed, but 40 states don't allow it.
 
The court's first major examination of gay rights in 10 years continues Wednesday, when the justices will consider the federal law that prevents legally married gay couples from receiving a range of benefits afforded straight married Americans.
 
The courtroom was packed on Tuesday and the crowd included actor-director Rob Reiner, who helped lead the fight against California's Proposition 8. Some people waited since Thursday — even through light snow — for coveted seats for the argument.
 
Both sides of the case were represented outside the courthouse. Supporters of gay marriage came with homemade signs including ones that read "a more perfect union" and "love is love."
 
Among the opponents was retired metal worker Mike Krzywonos, 57, of Pawtucket, R.I. He wore a button that read "marriage 1 man + 1 woman" and said his group represents the "silent majority."
 
Same-sex marriage is legal in nine states and the District of Columbia. The states are Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington.
 
Thirty states ban same-sex marriage in their state constitutions, while ten states bar them under state laws. New Mexico law is silent on the issue.
 
Polls have shown increasing support in the country for gay marriage. According to a Pew Research Center poll conducted in mid-March, 49 percent of Americans now favor allowing gays and lesbians to marry legally, with 44 percent opposed.
 
The California case was argued 10 years to the day after the court took up a challenge to Texas' anti-sodomy statute. That case ended with a forceful ruling prohibiting states from criminalizing sexual relations between consenting adults.
 
Kennedy was the author of the decision in Lawrence v. Texas in 2003, and he is being closely watched for how he might vote on the California ban. He cautioned in the Lawrence case that it had nothing to do with gay marriage, but dissenting Justice Antonin Scalia predicted the decision would lead to the invalidation of state laws against same-sex marriage.
 
Kennedy's decision is widely cited in the briefs in support of same-sex unions.
 
The California couples, Kris Perry and Sandy Stier of Berkeley and Paul Katami and Jeff Zarrillo of Burbank, filed their federal lawsuit in May 2009 to overturn the same-sex marriage ban that voters approved the previous November. The ballot measure halted same-sex unions in California, which began in June 2008 after a ruling from the California Supreme Court.
 
Roughly 18,000 couples were wed in the nearly five months that same-sex marriage was legal and those marriages remain valid in California.
 
The high-profile case has brought together onetime Supreme Court opponents. Olson, a Republican, and Democrat David Boies are leading the legal team representing the same-sex couples. They argued against each other in the Bush v. Gore case that settled the disputed 2000 presidential election in favor of George W. Bush.
 
On the other side Tuesday was Cooper, Olson's onetime colleague at the Justice Department in the Reagan administration.
 
The case is Hollingsworth v. Perry, 12-144.
 
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Associated Press writer Jessica Gresko contributed to this report.