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Associated Press
From left, attorney David Boies, plaintiffs Sandy Stier, with partner Kris Perry, from Berkeley, Calif., Jeff Zarrillo, with partner Paul Katami from Burbank, Calif., and their attorney Theodore Olson leave the Supreme Court on Tuesday. The court heard arguments on same-sex marriage.

Justices wary in same-sex case

Kennedy warns issue treads in untested waters

– A cautious and conflicted Supreme Court on Tuesday seemed wary of a broad constitutional finding on whether same-sex couples have the right to marry, and some justices indicated it may be premature for them to intervene in a fast-moving, unsettled political environment.

Justice Anthony Kennedy, considered to be the pivotal vote on the issue, said the court was in “uncharted waters.” He questioned whether it should have even accepted the case, in which lower courts struck down California’s voter-approved Proposition 8, which restricted marriage to heterosexual couples.

The court’s historic review of same-sex marriage continues today with a more limited question: Can Congress withhold federal benefits from same-sex couples married in those states where it is legal? Lower courts have said the Defense of Marriage Act of 1996 is unconstitutional because it treats legally married homosexual couples differently from heterosexual ones.

The cases have had a buildup befitting the consideration of one of the most divisive and politically charged issues in American life. Same-sex marriage did not exist anywhere in the world before 2000, and the national mood about such unions has changed so rapidly it has left politicians and the law behind.

“You want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cellphones or the Internet?” asked Justice Samuel Alito Jr. “We do not have the ability to see the future.”

Even Justice Sonia Sotomayor, whose questioning indicated she was skeptical of the reasons proffered for why gay couples should not be allowed to marry, seemed to think it might not be time for the court to make a bold decision.

“If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?” she asked.

Sotomayor’s question indicated the complicated nature of the case at hand.

Washington lawyer Charles Cooper is representing proponents of Proposition 8 in defending the law since California officials have refused.

He said the court should respect the decision of California voters, who faced the “agonizingly difficult question” of whether to protect traditional marriage after the state supreme court had ruled gay couples could wed.

Theodore Olson, representing two California couples who want to marry, wants Prop 8 overturned. But he is also pushing the court to find that the Constitution demands that the fundamental right to marry must be extended to same-sex couples nationwide.

And Solicitor General Donald Verrilli, representing the Obama administration, offered something of a middle ground.

He said those states that offer gay couples benefits such as civil unions – fewer than 10 now – must take the next step and offer marriage.

Chief Justice John Roberts Jr. expressed a keen interest in whether the court might dispose of the case by finding that Cooper’s clients did not have the legal standing to bring the case.

And Kennedy’s speculation that perhaps the court should not have accepted the case would in effect affirm the appeals court ruling.

Either of those would likely have the real-world effect of returning same-sex marriage to California, but not set a precedent for other cases.