An appeals court struck down the measure, so a decision by the Supreme Court not to weigh in would most likely lead to the resumption of same-sex marriages in California. Such marriages were authorized by the California Supreme Court before voters passed Proposition 8 in 2008.
The court's liberals sharply questioned Washington lawyer Charles J. Cooper, who represented proponents of Prop 8 and said that procreation and responsible child rearing were rational reasons for government to limit marriage to heterosexual couples.
He was challenged by Justice Elena Kagan, who said those reasons might be grounds for valuing marriage among heterosexual couples but were not a basis for excluding same-sex couples. She and others noted that the law allows older or sterile heterosexual couples to marry.
Justice Antonin Scalia challenged lawyer Theodore B. Olson, who was arguing to overturn Prop 8 and have the court rule that there is a constitutional right to marriage that must include same-sex couples.
Scalia and other conservatives wondered how the Constitution could mandate a position on same-sex marriage, which, as Justice Samuel A. Alito Jr. noted, did not exist before the year 2000.
"When did it become unconstitutional to prohibit gays from marrying?" Scalia asked.
Olson said he could not answer the question precisely, but pointed repeatedly to the court's decision in 1967 that wiped away state laws prohibiting interracial marriage.
Kennedy seemed to argue both sides of the case, challenging Cooper's contention that the interests of society are paramount. Kennedy said there are "40,000 children in California that live with same-sex parents,"and have an interest in their parents' receiving full marital status.
"The voice of those children is important," he said.
But he often returned to the issue of whether the case was properly before the court — California state officials refuse to defend the law, and that left the job to proponents of Prop 8. He also questioned whether the issue had come before the court too swiftly, before it is fully known, for instance, how children in same-sex households fare.
"We have five years of information to pose against 2,000 years of history," he said.
Notes of caution also came from Justice Samuel A. Alito Jr. and to some extent from Justice Sonia Sotomayor. Alito said the court might not be prepared to assess the effects of something "newer than cellphones and/or the Internet."
The case poses various options for the court. Cooper was asking the justices to simply agree that the democratic process was the way to settle the question and let California's amendment stand unless voters wanted to change it.
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