Impromptu disco outside US supreme court as judges debate gay marriage ban

Among the gay rights supporters outside the US supreme court were a number colourfully dressed and dancing at an impromptu disco just yards from advocates of California’s ban on same-sex marriage.

Inside the nine justices of the court debated whether gay people and lesbians in California have a constitutional right to be wed and how far that right should extend across the US.

Placards reflected diametrically opposed positions. “Justices, tear down this wall!” read one. A man, standing alone on a corner, held another that read: “Kids do best with a mom & dad.”

Some of the several hundred people outside the court supported California’s Proposition 8 initiative, which banned same-sex marriage in 2008 with a 52 per cent vote, but the vast majority oppose it.

Yesterday there was an almost euphoric atmosphere among the equal-rights activists, some of whom had camped out in rain and snow under tarpaulin since last Thursday to secure a seat in the court’s public gallery. Supporters of the ban were prominent too.

“There are reasons for marriage between a man and a woman and it is to preserve our society – I am here to uphold what I voted for,” said Helen Bunt Smith (70) from Pasadena in California.

Two landmark cases
Yesterday's case, Hollingsworth v Perry, was the first time the court has tackled the subject of gay marriage. It is the first of two landmark cases this week that could legally redefine marriage across the US. They could be the most important cases to come before the court since the Roe v Wade constitutional ruling in 1973 that removed the ability of states to ban or restrict abortion.

Another case, United States v Windsor, to be heard by the court today, will deal with the broader issue of Congress's decision to withhold federal recognition of legally married same-sex couples.

Inside, in a packed courtroom, the nine justices thrashed out the constitutional ramifications of the Californian ban and whether ruling it unconstitutional would open same-sex marriage across the US.

Gay marriage is only 10 years old in the US. Justice Samuel Alito asked how the court could decide on same-sex marriage based on its sociological effects when it is "newer than cell phones and the internet".

Massachusetts was the first state to introduce it in 2003. Since then, nine states and the District of Columbia have legalised same-sex marriage.

Obama on Stonewall
President Obama put the issue high on his agenda when he referred to the 1969 Stonewall riots in New York, which kick-started the gay rights movement, in his second inaugural address in January, ventilating a view that is becoming more accepted among Americans.

A recent Washington Post -ABC News poll showed 58 per cent of people favour the legalisation of same-sex marriage, including more than 80 per cent of people under 30.

But several supreme court justices yesterday appeared reluctant to rule on a nationwide right to same-sex marriage and questioned whether now was the time for the court to decide on such a young issue.

"I just wonder if the case was properly granted," said Justice Anthony Kennedy, a Ronald Reagan-appointee to the supreme court who is expected to hold the decisive swing vote on the nine-judge court.

Among the conservative justices, Antonin Scalia, another Reagan appointee and the court's longest-serving judge, tussled with attorney Ted Olsen, who argued against the Californian ban, on the issue of when it became unconstitutional to prohibit gays and lesbians from marrying.

Supporters of Prop 8 argued, through their lawyer Charles Cooper, that redefining marriage as a “genderless institution” could harm both marriage and society, and refocus the purpose of marriage “away from the raising of children and to the emotional needs and desires of adults”.

Liberal justices argued that if marriage was about “regulating procreation” as these supporters claimed, then same-sex marriage would be no more harmful than allowing infertile couples or couples beyond child-bearing years to marry or prisoners who can marry but cannot have children.

Kennedy raised the plight of 40,000 children in same-sex families in California, saying the “voice of those children is important”.

The US solicitor general, who is against the ban, said these children “don’t have parents like everybody else’s parents” and that has “a real cost in the here and now”.

But several justices, including liberal-leaning Obama-appointee Sonia Sotomayor, appeared hesitant to venture into "uncharted waters", as Kennedy put it, to determine the effect of lifting the ban or to force gay marriage in certain American states where the matter had not yet had time to percolate.