Short-Circuiting the System to Play Elected Dictator

 

Prosecutorial discretion.

Now there’s a nice phrase.

Another phrase that’s almost synonymous with prosecutorial discretion is selective prosecution. One is considered a sometimes valid, if often abused, tool in the prosecutorial toolbox. The other heads off into the dark hinterlands of overt discrimination and flat-out corruption.

From what I’ve seen, selective prosecution is closely aligned with those other destructors of justice: subornation of perjury and tampering with the evidence.

Taken together, these little prosecutorial peccadilloes have the ability to overturn our justice system and make it into a tyranny.

Prosecutorial discretion, when mis-used for political demagoguery, can easily become a means of blocking the system and turning the whole legislative/judicial process into a sham. Prosecutorial discretion aligned with political demagoguery is so close to selective prosecution that it’s difficult to differentiate between them.

My colleague, Leah Libresco, chimed in on the question of prosecutorial discretion yesterday with a fine post on the behavior of two elected officials. These two people are at the opposite ends of the ideological spectrum on what they are demagoguing about, but their misbehavior is based on an identical misapprehension of the powers of their office.

One is Kathleen Kane, the Attorney General of the State of Pennsylvania. Attorney General Kane announced a few weeks ago that she would not do the job the voters of the state of Pennsylvania elected her to do. She would not defend the state’s law defining marriage in court. Why? Because she doesn’t agree with the law. She seems to think that the law is immoral.

Her announcement was greeted by cheers from gay rights activists and uncomprehending silence from most of the citizens she betrayed. Attorneys General have gone about the business of doing their jobs for so long that most people just take it for granted that they will do them. In fact, a lot of people don’t really understand that when an attorney general flat-out refuses to do their job in this way, it is, and should be, an impeachable offense in most localities.

The other is a sheriff in Baton Rouge Louisiana who has been arresting homosexuals for violation of what sounds like the state’s anti-sodomy law. The Supreme Court overturned this law in 2003. I would guess that the sheriff didn’t agree with this decision. He may very well mirror Attorney General Kane by thinking that the decision is immoral.

This debate about where personal morality ends and the responsibilities of office begin is not nebulous. It also does not apply to employment situations such as whether or not a pharmacist is required to fill prescriptions for RU486, a nurse should be required to assist in an elective abortion or a florist must sell flowers for a gay wedding. But it applies absolutely to elected officials.

The difference — and it is an enormous difference — is between ordinary employment and elected office. An elected official who refuses to fulfill the requirements of their job or who deliberately oversteps the limits of their powers, is violating a public trust. They are violating the Constitutional privilege to hold office and execute the powers of the people in the name of the people.

Public office is not mere employment. It is the indispensable ingredient of the smooth functioning of a just and stable government. As such, it is incumbent on every and all elected officials to do their jobs to the best of their abilities and not the abuse the powers of their office.

I react to both the situations described above, not, as Leah did, as a philosopher, but as an elected official who has been charged with fulfilling the duties of office for 18 years. I understand several key things that proponents of these two elected officials’ actions won’t accept.

First, law enforcement, from top to bottom, is not law making. Law enforcement enforces laws. It does not write them. If Attorney General Kane wanted to work to overturn Pennsylvania’s marriage law, there were many options open to her, including running for election to a law-making position. Since she is an attorney, she might also have considered not running for office at all and filing cases against the law, maybe doing it pro bono.

An Attorney General is not supposed to even take positions on the laws which they are sworn to defend and uphold. By that I mean that she should not be out making stump speeches against such laws — or for them, for that matter. Her job, and I keep saying this, but nobody seems to hear me, her job is to uphold and defend the laws of the State of Pennsylvania.

This is especially grave since, like all elected officials, she is the only person in her jurisdiction (in this case, the entire state of Pennsylvania) who holds the power of her office. If she refuses to do her job, the job can not be done by anyone else.

This is equally true of the sheriff in Baton Rouge. As an elected official, he is the only sheriff in that jurisdiction. No one else can do his job. Also, he is not a law maker or a law interpreter. He is a law enforcer. The decisions about what laws he should enforce are made by Congress, the legislature and the courts.

Elected office is a privilege, not a sentence to be served. If any elected official finds that they cannot in good conscience perform the duties of their office, they have the free right to resign at any time.

Leah Libresco used a quote from a play and movie about my patron saint, St Thomas More, in her analysis. Thomas More was the Chancellor of England. Despite the enormity of this position, he resigned when his conscience would no longer allow him to discharge his duties as the King demanded. This is a good example for all of us who hold office.

If Attorney General Kane can not in good conscience do the job that her office requires of her, she has the clear option of resigning. What she does not have is the option of refusing to do her job and thereby depriving the people of Pennsylvania of the legal representation they are Constitutionally entitled to.

I am glad that Leah found this example giving the other side of this argument. Maybe it will help clarify what is at stake for those people who are so enthralled with their particular advocacy that they are willing to support overturning the very structure of government that gave them the right to advocate in the first place.

From Unequally Yoked:

I’m a little troubled by the way same-sex marriage is becoming de facto legal in Pennsylvania.  When I was having SCOTUSblog parties back in June, I found the reasoning based on standing kinda messy.  If a law is challenged, it seems like the appropriate state officials should be obligated to defend it.  Ducking it seems like a odd kind of de facto veto.  And not a proper civil disobedience-y one, a la Mayor Jason West of New Paltz, who conducted then-illegal marriages and was charged for it.

And now this is playing out in Pennsylvania.  The PA Attorney General Kathleen Kane declined to defend her state’s ban on same-sex marriage, and it’s unclear who will pick up the baton, or if anyone will be left with standing to do so.  The proper way to overturn laws is repeal or, if they’re actually unconstitutional, letting them have their day in court.  Not short-circuiting the system over a conscience objection.

 

Gosnell Was Not Alone


Roe v Wade set the limit for viability at 26 weeks into pregnancy.

That was based on 1973 medicine and judicial imaginings. Today, babies are being saved as early as 21 or 22 weeks into pregnancy. But we still live under the law created by the Supreme Court which set viability at 26 weeks.

After 26 weeks, doctors can still do abortions if they decide the mother’s life or health is at stake. In actual practice, that means that abortionists kill babies right up to the day of birth.

Dr Kermit Gosnell ran an abortion clinic that prosecutors described as “a chamber of horrors.” Dr Gosnell is now in prison. But he was not sent to prison for running a chamber of horrors. He is in prison because a few of the babies he killed lived through the abortion and he killed them afterwards.

The takeaway of the Gosnell verdict for the abortion industry is not to stop killing late-term babies. Based on all the pushback in Texas, it’s also not to provide standard medical care during abortions. Rather, it is to make absolutely, no-doubt-about-it-sure that the baby is dead before it is delivered.

Killing a baby while it’s inside its mother’s body is not a crime. Killing the same baby when it’s separate from its mother is murder.

In today’s tragic world, the right to life is defined by geography.

This Live Action video is of a doctor and counselor discussing an abortion on a woman who is 27 weeks pregnant.

Think about it: Twenty-seven weeks. That is a viable child, even by 1973 standards.

To top if off, they are telling the young women that she will go through labor alone in a hotel room. They even give her instructions about what to do if she delivers the baby while she’s on a toliet.

They blithely assure her that going through labor and delivering alone in a hotel room is safer than giving birth in a hospital under ideal medical conditions.

How does this benefit the woman? In what way is it medically necessary? If there was a medical reason to stop the pregnancy at 27 weeks to save the mother’s life, it would be far safer and better for her to deliver her baby in a hospital with pain-killing medication and to also provide medical care to save the life of her baby.

Should abortion clinics be exempt from the health care requirements of other surgical centers? That is the argument pro abortion people make, and they make it in the name of “women’s health.”

That is not feminism. It is not in the interest of women’s health. This child could and almost certainly would live if it was delivered properly, so it certainly is not in the interest of the baby.

Who and what do late-term abortions serve except the demons of death?

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Proposition 8 Supporters Re-Open the Case

Proposition 8 supporters have filed a case in court claiming that the vote of the people which passed the law should stand.

From what I’ve read, I believe that what they are basically saying is that since the Supreme Court failed to rule on Proposition 8 by tossing the whole case out, that the law itself stands.

When the Supreme Court refuses to review a lower court ruling, that means that the lower court ruling is allowed to stand. I believe that the lower court ruling in question overturned Prop 8. However, the Supreme Court took the Prop 8 case under consideration, and then tossed it out by saying that the law’s defendants did not have standing.

Does that mean that the entire case was thrown out of court and has no merit? I think that is what the opponents of Prop 8 are saying in the case they have filed.

It’s an interesting argument that, at least on its face, does seem to have merit.

I have no idea where this will go. The whole thing might wind its way back to the Supreme Court again. The basic point for now is that the proponents of traditional marriage are not rolling over. That, in itself, is very good news.

The Hydra-Headed DOMA Decision and Bankrupting the States

Michigan state law allows health benefits for school employees and their spouses.

It does not allow health benefits for domestic partners.

US District Judge David Lawson struck down this law on June 28. He based his decision on the recent Supreme Court decision overturning the first half of the federal Defense of Marriage Act.

State law determines what benefits public school employees will receive. These benefits are paid for out of the state coffers. One would think that this would be a state’s rights issue, determined by the state’s legal definition of what constitutes a spouse.

However, the recent Supreme Court decision has allowed the judge to overstep state definitions of marriage and require the State of Michigan to extend health care benefits to domestic partners.

According to CNA:

U.S. District Judge David Lawson’s June 28 ruling said it can “never be a legitimate purpose” to deny health benefits to the same-sex partners of public employees. He said the plaintiffs who lost benefits or had to pay for more expensive private health insurance have a “plausible claim” that the law violates the U.S. Constitution.

The 2011 law ended same-sex partner benefits for a few school districts, the counties of Ingham and Washtenaw and the cities of Ann Arbor, East Lansing and Kalamazoo, the Associated Press said.

Defenders of the law said it was passed in the spirit of a 2004 constitutional amendment that defined marriage as a union of a man and a woman. That amendment won 58 percent of the vote.

This, of course, raises other questions for Michigan, and for all states. The Supreme Court decision essentially overturned state definitions of marriage as between one man and one woman, at least for all practical purposes. The Michigan case is just one small example of how far-reaching this Supreme Court decision actually is.

It will require a change in how the states pay for things such as employee benefits and entitlements. This district court decision pushes the envelope past legal marriages and into the area of domestic partnerships. Since our laws are required to be equal in their applications, that means that it does not just apply to domestic partnerships between same-sex couples, but between virtually anyone.

I realize that is not what the judge specifically addressed in his ruling, but that is the impact of the ruling. It may take a few court cases to make the point, but if this ruling stands up under appeal, that will be its effect in the long term.

The question immediately arises: How are the states going to pay for this? The answer, I’m pretty sure, is that they can’t. Oklahoma is actually in better financial condition than many states, and we would be flummoxed trying to provide benefits for every live-in “domestic partnership.” Of course, the federal government might decide to step in with huge subsidies for these benefits, but that raises the ugly question of how they are going to pay for it.

The only financially responsible answer that provides equal protection under the law that I can see is to either change state laws to redefine marriage to include gay couples and then wait for the next big trendy change allowing polygamy, followed by benefits to cohabiting heterosexuals, OR, do away with benefits for everybody. That is the effect of the Supreme Court’s decision on DOMA on the states.

I have no doubt that in the long run — and I’m talking about years, maybe a decade, but not much longer — where we will end up is doing away with benefits for everyone. It will be a simple financial imperative.

Welcome to the brave new world of marriage is whatever we say it is today.

Supreme Court Dumps DOMA; Tosses Prop 8


The Supreme Court said that the Federal Defense of Marriage Act is not Constitutional. It also held that the proponents of Proposition 8 did not have merits, which means they tossed the appeal and Prop 8 along with it.

A spokesman for gay marriage advocates said after the decision was handed down that this ruling effectively legalizes gay marriage throughout the United States. What it does by essentially remanding Prop 8 is let a California court ruling legalizing gay marriage stand. In the case of DOMA, it tosses the question of how to define marriage back to the states.

In actual practice, there are big unanswered questions about how the federal government and its many interventions into state government will be affected by this ruling. It think it will call a lot of things into question as they pertain to married couples and children in the various states.

It is no exaggeration to say that this a landmark ruling. I need time to read the decisions and think it through before I say more.

For that reason, I am going to hold off analysis for a while.

Feel free to comment below, but do it in a way that does not attack other people.

What Will the Supremes Do with Gay Marriage?

Tomorrow is the day that the Supreme Court is scheduled to hand down rulings that will affect how America deals with the definition of marriage for decades to come.

The legislation in question is the Federal Defense of Marriage Act and California’s Proposition 8.

The Court can do anything. It can remand the whole question back to the states. Or, it can issue a ruling of sweeping proportions similar to Roe v Wade. It can even announce that it isn’t going to rule at all.

People on both sides of the question studied the Justices’ every twitch and cough when the cases were presented earlier this year. We all wanted a crystal ball so that we wouldn’t have to endure the suspense of months of waiting before we found out which way and how far the Court was going to jump on this issue.

Tomorrow, the waiting and guessing will be over. The Court will make its ruling.

After that will come the dissecting and rejecting of whatever they rule. I am reasonably certain that no matter what the Court does on this issue, a large segment of the American population is going to be unhappy and angry about it. I am equally certain that no matter what the Court does, the debate about how we will define marriage under the law will continue.

Which leads me to the question of how we should behave tomorrow and on into the months and years ahead. Much of the debate concerning this issue has devolved into slander of people who hold opposing views. I think part of the reason why this happens is that both sides of the argument believe that their position is a moral imperative. Another part of why we behave so terribly when we discuss how to define marriage is that the temper of our times has taught us that bullying, slander, smear tactics and mud-slinging are legitimate tactics.

Instead of dealing with the issues at hand and talking about the arguments being made, we tend to try to discredit the people making the arguments.

My feeling about this is that if you are a Christian, you have a moral responsibility to forgo this kind of behavior. It does not matter what they call you, you may not slander them back. Let the other side have the low road.

We are defending home, family, life. We are defending the core institution on which Western civilization is built. We do not need to attack anyone to do that.

Also, we need to remember that homosexuals are just people. More importantly, they are children of the same God whose teachings we are trying to defend. No matter what they say or do, they are our brothers and sisters in creation. We should try to convert them, not destroy them.

The other side of public debates involving Christian values of any sort always seems to try to base their arguments on Christian bashing and degrading our faith. It can be hard to take; especially when they defame the name of Jesus. But do not reply by degrading or defaming them. Do not do it.

That does not mean that we should back away from saying the truth of things. It just means that we should forgo attacking people. We can talk about issues and even bad behavior all we want. Just don’t attack a person while we do it.

I believe that no matter how the Court rules tomorrow, the fight will go on. I also believe that no matter how the Court rules or what detours or setbacks we suffer, the victory will ultimately be ours. All we have to do is our part, and do it in a way that lets everyone who observes us know that we serve a Risen Lord.

Abortion on Demand After the 5th Month: Should It Be Legal?

 

Rumors have it that the United States House of Representatives will vote on a bill that will extend the District of Columbia ban on abortions after 20 weeks to the rest of the country.

The bill passed out of House committee this week, and, according to some sources, is being marked up for a vote that may take place next week. I doubt that this bill will pass in the Senate, and it certainly will be vetoed by the President if it does. There is no chance the bill’s authors can convince both houses to override a Presidential veto.

 

On top of that, Roe v Wade specifically set the limit for abortion on demand (with some regulations) at 26 weeks of pregnancy. Unless the Court changes that ruling, the bill is unconstitutional.

So, what is happening here?

I do not see any reason for late-term abortions. I’ve written about that here. However, I always wonder about the real reason for a vote like this, since it is definitely not to make a law and everyone involved knows it.

Do the bill’s authors view the vote as a statement designed to build consensus over time? Are they throwing down the political gauntlet and forcing people to declare where they stand on this issue by how they cast their votes? Do they want to use it as a way of defining an issue for upcoming political campaigns? Or is this some combination of all these things?

I would guess that almost any member of the United States Congress could take a roll sheet of either the Senate or the House and pinpoint with amazing accuracy how each member will vote on this. I imagine they could have pinpointed it at any time during this session. I’ll go a step further and say that they could probably predict what everyone who speaks on the issue will say.

So they’re not trying to convince one another. This is about something else.

 

If they had a chance of passing this into law, it would be a powerful thing, indeed. It would force the Supreme Court to either rule against it or let it stand. That could be great, or, if they uphold it, it could make the situation worse; potentially much worse. Everything you do in when you’re in public office can go great or turn sour. In issues with generational punch and Court oversight like this one, strategy is everything.

The reason I’m raising these questions is that I want you to peel back the layers of propaganda and think about what is really happening with your government. I want you to look at the legislative process with understanding. If Christians are to affect change in the world, we need to do more than watch the game and cheer for our side. We need to be able to see through the game.

 

So, give a thought or two about this bill to limit abortions and tell me what you think they’re doing. Do you think it has any chance to succeed legislatively? Do you think that one of the many similar laws that have passed in the various states will wend its way through the appeals process and on up to the Supreme Court? Do you think there’s any chance the Supreme Court will uphold that law if it does?

These are big questions, and I can tell you, I don’t know the answers to all of them.

What do you think?

DNA and the Fourth Amendment

Is DNA protected from illegal search and seizure by the Fourth Amendment?

If you are arrested for, say, drunk driving, do the police have the right to take a swab of your DNA and put it into police databanks?

The Supreme Court says “yes,” and that answer has set off a predictable firestorm on both sides of the civil liberties aisle.

We’ve been debating this issue most acrimoniously for several years in the Oklahoma House of Representatives. Proponents of taking DNA from people who have been arrested compare it to taking a fingerprint. Since fingerprints are routinely taken at the time of every arrest and put into databanks, why not DNA? Opponents express concerns about forced self-incrimination and illegal search and seizure.

There is no right answer to either set of arguments. Both positions have merit. Both concerns are valid.

This is the sort of disagreement that good people get into when they try to make laws. For several years running, the opponents of this legislation have carried the day. Oklahoma finally passed a weakened version of the original legislation that allowed law enforcement to take DNA samples from convicted felons.

I understand the problem with putting people’s DNA into police databanks. If it is abused, it can be tantamount to fishing expeditions where police round up “all the usual suspects” in hope that something pops us. On the other hand, I also understand that DNA is more accurate than fingerprints. I doubt that it’s foolproof. Nothing is. But if it is processed and interpreted by people who are both honest and who know what they are doing, it is more reliable than any other kind of evidence we have today.

DNA is particularly useful in solving violent crimes against persons such as rape and murder. It can pinpoint a rapist. It can turn around and free an innocent person who has been wrongly accused. DNA has been used to free a number of men who have been convicted of rapes they didn’t commit, as well as a several men (Everyone I know about who has been freed this way is a man.) who were convicted of murder.

I voted for this legislation for these reasons, albeit with some trepidation. Police state fears and mis-use of evidence are not paranoia. They are a reality in much of the world and throughout history. For instance, we had a scandal here in Oklahoma in which Joyce Gilchrist, Oklahoma City Police Department forensic chemist, was convicted of falsifying evidence.

It’s difficult to balance the needs of criminal justice to gather the evidence they need to successfully prosecute criminals with the right of the populace to not be afraid of their government. Inserting DNA into this will complicate the situation and require a major re-thinking of what protections are needed.

When the Supreme Court ruled that law enforcement may take DNA swabs from people who have been arrested, it made this job of thinking and re-thinking both imminent and necessary. I assume that when a Supreme Court Justice votes on a ruling, he or she does it with the same awareness that I have when I vote on legislation. I know that no matter how much I try to weigh the pros and cons, I may make the wrong decision. I have made wrong decisions. No matter how hard I try to do my best, I will make wrong decisions again.

Such is the human condition.

Whether or not the Supreme Court was wrong with this ruling depends on how it’s used by law enforcement. Whether it opens the door to abuses, or it ushers in an era of much more accurate prosecutions depends on the integrity of the men and women who use it. Given that we are fallen people living in a fallen world, abuses are inevitable. That is why we need strong safeguards.

Imposing those safeguards is first of all in the hands of state legislators like me. This discussion leads directly to the reason why I pray the Rosary every day. My constant prayer is that God will protect me — and everyone else — from my own stupidity.

I expect I will vote on issues that arise concerning the enforcement of this recent Supreme Court ruling. Legislators all over the country will be doing the same thing. Congress will probably get into the act, as well.

The goal in all this is public safety. Public safety has, as it always does, two components. The first is safety from the bad guys out there who hurt people. The second is safety from the government itself.

 

Supreme Court Questions Whether Marriage is a Federal Issue

What the Court says in questions does not necessarily reflect how they will rule.

However, two days’ of questioning concerning Proposition 8, which was heard yesterday and the federal Defense of Marriage Act, which was heard today, seems to form a consistent pattern. The justices have remarked twice now on the fact that marriage has always been a state issue.

I don’t know if that’s an indicator of how they will rule, but I sincerely hope so. I think it would be disastrous for the Court to wade into this explosive issue that the states are actually handling through the electoral process with a judicial fiat. There is no reason that I can see for the justices to silence the voice of the people with thunder from the Court.

No one knows, but questions for the justices themselves seem to echo this sentiment. Justice Kennedy questioned whether the Court should be hearing these cases at all. On the other hand, Justice Gader-Ginsberg commented that DOMA reduced gay marriages to “skim milk” marriages.

I honestly don’t know what a “skim milk” marriage would be, but I assume that the question was meant to support gay marriage. I could be wrong, but that’s my guess.

From the Wall Street Journal:

By EVAN PEREZ, BRENT KENDALL and JESS BRAVIN

WASHINGTON—Justice Anthony Kennedy on Wednesday questioned whether the federal government has the right to define marriage, a role traditionally reserved for states, in the second day of Supreme Court arguments on gay marriage.

The comments by Justice Kennedy, seen as holding a key vote on the court, came after several justices sharply challenged the Obama administration’s handling of the 1996 Defense of Marriage Act, which bars federal recognition of same-sex marriage. Some questioned whether the court should be hearing the case at all.

Former Solicitor General Walter Dellinger tells WSJ’s Jerry Seib that arguments in the Supreme Court suggest justices may be seeking a narrow ruling that clears the paths for state action on gay marriage, rather than a sweeping ruling to settle the issue.

The arguments concluded shortly past noon Wednesday, a day after the justices heard a case on California’s gay-marriage ban.

Former Solicitor General Paul Clement, defending the 1996 federal law, said it merely defines marriage for the purposes of the federal government and doesn’t bind states, regardless of whether they want to approve gay marriage.

Justice Kennedy, however, jumped to express concerns with that argument, questioning whether the federal government was intruding on the states’ territory. He said the Defense of Marriage Act ran the risk of conflicting with states’ role in defining marriage.

Liberal justices joined Justice Kennedy in questioning the law. Justice Elena Kagan said it raised red flags, while Justice Ruth Bader Ginsburg said the federal law diminished same-sex marriages to “skim milk” marriages. (Read more here.)

 

Tea Leaves and Goat’s Entrails: Guessing What the Supremes Will Do About Gay Marriage

I’ve read that the ancients used to slaughter a goat and study its entrails to try to predict the future. Others made tea and studied how the tea leaves settled to the bottom of the cup for the same purpose.

We all want to know what’s going to happen. We’re smart enough to anticipate, but not prescient enough to know. This human conundrum has kept fortune tellers and sooth sayers of one sort or the other in business for all of human history.

I’m telling you this as a caution. What observers of the Supreme Court think they see in the twitch of a judicial eyebrow or rise of a voice at the end of a question may, in reality, be nothing more than a tic or a frog in the throat. Ditto for the questions the Justices ask. They ask questions for their own reasons, or sometimes I’m sure, for the other justices’ needs. Questions, facial expressions and tones of voice do not Supreme Court rulings make.

Having cautioned you — and myself — with all this, I have to admit that what the press is saying about the Supreme Court hearings on Prop 8 today seems to reflect what I’ve been saying all along: Do they really want to jump in there and take the authority to make this decision on themselves? Would they be pushing the country over a cliff? Wouldn’t it be wiser, more honest, and frankly, more in keeping with the Constitutional authority vested in the Court, to let the people continue to work this out through the electoral process?

After all, it is working. 

Tomorrow, the Court will hear arguments on the Defense of Marriage Act. While DOMA is important, Proposition 8 is the big one. The reason I say that is because Prop 8 is the question that opens the door for the Court to take the powers which have heretofore been vested in the states onto itself. 

These decisions, and the possible fall-out from them, hang like the Sword of Damocles over this nation. Will the Court be wise and let the people speak, or will it be foolish and thrust this country over the culture war cliff altogether?

From the Chicago Tribune:

It was the first of two days of argument. On Wednesday, the court will consider the 1996 federal Defense of Marriage Act (DOMA), which denies federal benefits to married same-sex couples. Rulings in both cases are expected by the end of June.

The narrower DOMA case does not give the court the same opportunity to issue a broad ruling because the case relates only to a federal law that limits the definition of marriage to opposite-sex couples for the purposes of federal benefits.

Only the California Proposition 8 case gave the court the option of finding a constitutional right for same-sex couples to marry. Polls show growing support among Americans for gay marriage.

But during the argument, Justice Anthony Kennedy, who is considered a swing vote, raised concerns about the court entering “uncharted waters” on an issue that divides the states.

Kennedy even raised the prospect of the court dismissing the case, a relatively unusual move that would leave intact a federal appeals court ruling that had earlier struck down the California law, known as Proposition 8.

In a similar vein, Justice Samuel Alito also urged caution, noting that gay marriage, as a concept, is “newer than cellphones and the Internet.”

None of the justices indicated support for the Obama administration’s favored solution, which would strike down Proposition 8 and require the eight states that already recognize civil unions or domestic partnerships to allow gays and lesbians to marry. (Read more.) 


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