National School Boards Association Applauds Louisiana Supreme Court Ruling to Strike Down Voucher Scheme

ALEXANDRIA, Va., May 7, 2013 /PRNewswire-USNewswire/ -- The National School Boards Association (NSBA) applauds the ruling by the Louisiana Supreme Court that finds the state's school vouchers unconstitutional.

The Louisiana voucher law has diverted taxpayers' money from public schools to private individuals and schools that are not subject to academic, operational, and accountability standards.

"NSBA stands for strong public school system for all students. Vouchers undermine that fundamental principle and, as the court concluded, violate constitutional principles, too," said NSBA President David A. Pickler. 

Working with the Louisiana School Boards Association (LSBA), NSBA pushed to overturn the law through an amicus brief in Louisiana Federation of Teachers v. State of Louisiana. That lawsuit challenged the constitutionality of several measures adopted by the Louisiana legislature, including the ploy to give vouchers to students in low-performing schools. The NSBA brief noted that the voucher scheme further aggravates the plight of academically challenged schools by taking away much-needed funds from low-performing public schools, thus perpetuating its own survival. 

"These kinds of gimmicks undermine our country's longstanding commitment to public education and steal resources from public school students," said NSBA Executive Director Thomas J. Gentzel. "These are not grassroots efforts being proposed by residents who are concerned about the education and future of the state's most vulnerable children, these are the products of out-of-state special-interest groups looking for profits."  

Under the provisions of the voucher law, Louisiana gives public funds to private schools, including religious schools, as "scholarships" to cover the tuition and fees of students whose parents choose to remove their children from public schools deemed "failing." However, the plan goes so far as to allow parents to use vouchers for their children as early as kindergarten, even if the child never attended a public school or the school is highly ranked.  

"We are pleased that the Louisiana Supreme Court has reaffirmed a basic tenet of the state Constitution: that taxpayer money should go to public schools that are open to all students," said LSBA Executive Director Scott Richard. "We hope all state residents can understand the dangerous precedent that a voucher program has set and how such a program undermines our local community schools. LSBA will continue to work towards its mission of service, support and leadership for local school boards and to ensure a quality public education for all students." 

NSBA opposes private school vouchers and tuition tax subsidies, which have continuously failed to improve student achievement. NSBA is committed to defeating legislation and initiatives that unconstitutionally divert taxpayers' funds from public schools to private and religious institutions that can exclude students for any reason.  

Founded in 1940, the National School Boards Association (NSBA) is a not-for-profit organization representing state associations of school boards and their more than 90,000 local school board members throughout the U.S. Working with and through our state associations, NSBA advocates for equity and excellence in public education through school board leadership. www.nsba.org

SOURCE National School Board Association

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Obama asks Supreme Court to review appointments ruling

By Lawrence Hurley

WASHINGTON (Reuters) - Setting the stage for a constitutional showdown, the Obama administration on Thursday urged the Supreme Court to rule that presidents have broad authority to make certain appointments without Senate approval.

If the nine justices agree to hear the dispute over appointments President Barack Obama made to the National Labor Relations Board last year, it will be one of the biggest issues before the court in its next term, which will begin in October and end in June 2014.

In January the U.S. Court of Appeals for the District of Columbia Circuit ruled that three appointments to the panel, which normally has five members, were invalid.

The appeals court agreed with Noel Canning, the bottling company that challenged Obama's move, in finding that the president did not have the authority to make the NLRB appointments because the Senate was not technically in recess at the time.

The U.S. Constitution allows the president to make appointments when the Senate is in recess. Such appointments expire at the end of the congressional session.

Backed by the U.S. Chamber of Commerce, Noel Canning argued that an NLRB ruling against it was invalid because of the appointments, which meant the board lacked a quorum.

Obama made his NLRB appointments on January 4, 2012, when the Senate was in session but not conducting business. The congressional session began on January 3, according to the Senate website.

In the brief filed on Thursday, Solicitor General Donald Verrilli defended the recess appointment powers of the president, disputing the court's conclusion that it can only be used in the period between formal sessions of the Senate.

Presidents from both parties have used their recess appointment authority to make appointments when the Senate is not conducting business.

If the appeals court ruling was left to stand, it would "dramatically curtail" the president's authority, Verrilli said.

In addition to limiting presidential power, the ruling meant that the NLRB did not have the required quorum to make decisions, casting doubt on all its actions and rulings since Obama made the appointments.

The ruling "threatens a significant disruption of the federal government's operations," Verrilli wrote.

The high court will decide whether to hear the case after lawyers for Noel Canning file a response, which is due within 30 days.

(Reporting by Lawrence Hurley and Amanda Becker; Editing by Howard Goller and Xavier Briand)

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Supreme Court Limits Human Rights Suits

In a case closely watched by human rights groups and multinational corporations, the Supreme Court today narrowed the ability of foreign victims of human rights abuses to turn to U.S. Courts for alleged violations of international law committed abroad.

The case was brought by 12 Nigerian plaintiffs against Royal Dutch Shell headquartered in the Netherlands. The Nigerians, who were granted asylum and are now living in the U.S., claimed that Shell aided and abetted human rights violations in Nigeria between 1992 and 1995. They sought to sue the corporation under the Alien Tort Statute (ATS), a federal law that allows foreigners to bring lawsuits in U.S. federal court for violations of human rights law.

But today the Court barred the suit from going forward.

Chief Justice John Roberts wrote, "The question here is not whether petitioners have stated a proper claim under the ATS, but whether a claim may reach conduct occurring in the territory of a foreign sovereign."

Roberts wrote that in the Nigerians' case that "all the relevant conduct took place outside the United States."

"And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application, " he wrote.

"Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices."

Jonathan Hafetz , a professor of law at Seton Hall University School of Law, said that today's decision "says that unless there is a sufficiently strong nexus to the United States, the ATS can't be used to enforce human rights violations."

For the last 30 years, human rights groups had used the ATS to hold human rights violators accountable to their victims. Several groups criticized today's decision.

"This decision so severely limited a law that has for decades been a beacon of hope for victims of gross human rights violations. The United States has been a leader in the fight against impunity, but this decision cuts a hole into the web of accountability," said Human Rights First's president, Elisa Massimino, in a statement. " Human rights abusers may be rejoicing today, but this is a major setback for their victims, who often look to the United States for justice when all else fails," she said.

Hafetz says the message today's decision sends is that "human rights advocates can no longer rely in the same way on U.S. Courts to remedy human rights abuses that occur in a foreign country."

Peter Rees, Shell's legal director, reacted to the decision in a statement: "In our view, the Court has reached the right decision. Shell remains firmly committed to supporting fundamental human rights in line with the legitimate role of business, and I want to make clear that we deny, in the strongest possible terms, the allegations made by the plaintiffs in this tragic case. Today's decision doesn't weaken the human rights of people around the world; it makes it clear that the Alien Tort Statute does not provide a means for claims to be brought in the U.S. which have nothing to do with the U.S."

The decision was praised by the U.S. Chamber of Commerce. "The U.S. Supreme Court's decision today ensures that trial lawyers cannot continue to use the American judicial system to expose global businesses to frivolous and costly lawsuits," said Thomas J. Donohue, president and CEO of the U.S. Chamber. "Today's decision helps to ensure that America will continue to be an attractive place to do business and removes barriers for companies looking to do business throughout the world."

Paul Hoffman, the lead counsel for the Nigerian petitioners, said today, "We are deeply disappointed on behalf of our clients and their case in the Court's decision." He called the opinion a "terrible blow to our clients after a very long search for justice."

Roberts was joined by Justice Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito. Kennedy and Alito also wrote separately. Justice Stephen Breyer, joined by the liberals on the Court (Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor), wrote an opinion agreeing with the Court's judgment to bar the suit from going forward, but not in the Court's reasoning.

"I would not invoke the presumption against extraterritoriality," Breyer wrote. He said he would find jurisdiction under the ATS when the conduct occurs on American soil, the defendant is an American national, or the defendant's conduct "substantially and adversely affects an important American national interest." Breyer wrote, "That includes a distinct interest in preventing the United States from becoming a safe harbor" for a torturer.

Hoffman said that it is "much less clear" what the decision means for the future. "From reading all the opinions, the Court is still uncertain to the extent of claims that arise outside the United States."

Hoffman pointed to a concurrence written by Justice Anthony Kennedy. "My sense is that what Justice Kennedy was saying is that he hasn't made up his mind about where he would draw the line. " Hoffman noted that there are several similar ATS cases pending across the country.

"The cases involving US corporations are going to be the strongest cases to survive this ruling" said Hoffman. "The cases that are going to have more difficulty will be cases involving foreign corporations and cases involving corporations with less connection to the United States."

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Supreme Court declines to hear gun rights case

WASHINGTON (Reuters) - Staying out of the raging national debate over guns, the Supreme Court on Monday declined to weigh in on whether gun owners have a constitutional right to carry handguns outside the home.

The court decided not to hear a challenge to a New York state law that requires those who want to carry a concealed handgun to show they have a special reason before they can get a license.

(Reporting by Lawrence Hurley; Editing by Howard Goller and Christopher Wilson)

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Texas Supreme Court Rules on Landmark Non-Economic Damages Case

AUSTIN, Texas, April 5, 2013 /PRNewswire-USNewswire/ -- On April 5, the Texas Supreme Court ruled on Medlen v. Strickland, a case with the potential to dramatically alter the legal relationship between people and animals. The Fort Worth Court of Appeals departed from long-settled law and allowed the recovery of non-economic damages for the death of a dog that was accidentally euthanized after being picked up by the local animal control after the owner was unable to timely pay for its release. The Texas Supreme Court overruled this decision and upheld precedent that non-economic, emotionally based damages could not be claimed on the death of an animal.

(Logo: http://photos.prnewswire.com/prnh/20120208/DC50016LOGO )

This is a great decision for pet owners and animals in general, and the Texas Veterinary Medical Association (TVMA) commends the court in making such a decision. Veterinarians devote their lives to caring for and preventing the suffering of animals and without a doubt understand the deep bond that develops between people and their pets. They sympathize with families over the losses of their animals, but they were also aware that such a dramatic change to the way that courts in Texas apply the law would have had vast unintended consequences.

TVMA supports maintaining the current legal system because it values animals, encourages responsible animal ownership, deters animal abuse and promotes innovative, affordable and quality animal care. The current legal system has produced a stable climate for animal care that has made pet ownership economically viable for most people. If the Fort Worth Court of Appeals decision had been upheld, individuals would have been able to file suit and collect large monetary recoveries for the death or injury of an animal, recoveries that are not usually available for the death of a person. The routine awarding of such damages would turn pet litigation into a cottage industry and ultimately drive up the cost of everything associated with the care of pets, including veterinary care, medicine, boarding, grooming, etc., making owning a pet cost-prohibitive for many people. Such damage awards would fundamentally change the way veterinarians practice medicine by forcing them to practice defensively, which translated to increased costs for veterinary care.

In the opinion on the case, Texas Supreme Court Justice Don R. Willett writes, "It is an inconvenient, yet inescapable, truth: 'Tort law . . . cannot remedy every wrong.' Lines, seemingly arbitrary, are required. No one disputes that a family dog—'in life the firmest friend'—is a treasured companion. But it is also personal property, and the law draws sensible, policy-based distinctions between types of property. The majority rule throughout most of America—including Texas since 1891—leavens warm-heartedness with sober-mindedness, applying a rational rule rather than an emotional one. For the reasons discussed above, we decline to (1) jettison our 122-year-old precedent classifying dogs as ordinary property, and (2) permit non-economic damages rooted in relational attachment."

For more information on the case, visit www.tvma.org, or to read Justice Willett's full opinion, visit www.supreme.courts.state.tx.us/historical/2013/apr/120047.pdf.

About The Texas Veterinary Medical Association??
Founded in 1903, the Texas Veterinary Medical Association is a professional association composed of more than 3,700 veterinarians committed to protecting public health, promoting high educational, ethical and moral standards within the veterinary profession and educating the public about animal health and its relationship to human health. For more information, call 512/452-4224 or visit tvma.org.

Contact: Elizabeth Choate, TVMA Director of Government Relations/General Counsel?
8104 Exchange Drive?
Austin, Texas 78754?
Email: echoate@tvma.org?
Phone: 512/452-4224?
Fax: 512/452-6633

SOURCE Texas Veterinary Medical Association

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How the Supreme Court will rule on gay marriage: A prediction

One opinion from John Roberts. One opinion from Anthony Kennedy. And crucial questions left unanswered

It's always a dangerous task predicting the outcome of a Supreme Court case. But in the spirit of March Madness — why not? Below, find out how the Supreme Court will decide its gay marriage cases, before the justices even write the opinions:

Hollingsworth v. Perry (the Prop 8 case): 
Chief Justice John Roberts, joined by the four liberal members of the court, will dismiss the case. Specifically, the Chief Justice will rule that the proponents of Proposition 8 do not have standing to challenge the District Court's ruling, because the decision allowing gay marriage did not cause them an "injury in fact."

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Indeed, throughout Tuesday's oral arguments, the Chief Justice appeared almost uninterested in what the lawyers had to say about the constitutionality of Proposition 8, a popular referendum that banned gay marriage in California. Not only did the Chief Justice force the lawyers from both sides to begin with the standing issue, he also forced the government to give it's view of standing despite the fact that, well, it didn't have one. But not even that was enough to divert the Chief's focus, and sure enough, Solicitor General Donald Verrilli did as he was instructed and more or less made up the government's position on the fly.

Virtually everyone else, including the Chief Justice's fellow conservatives, appeared uninterested in Roberts' desire to toss the case on procedural grounds. Both Justice Anthony Kennedy and Justice Samuel Alito openly expressed concerns that refusing to grant standing would create a state of affairs whereby a state executive branch could override ballot initiatives they disagree with by refusing to defend them in court. The other justices, both liberal and conservative, appeared eager to tackle the merits (mind you, Justice Clarence Thomas did not speak, but history suggests he is not one to dodge tough questions on procedural grounds).

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Which brings us, inevitably, to Justice Kennedy. As the author of Lawrence v. Texas (which struck down state laws banning sodomy), and a lover of the spotlight, would he not be primed to join the liberal justices and vindicate the rights of gay Americans once more? No, probably not. Contrary to popular belief, Justice Kennedy is not a "moderate." Rather, as Jeff Toobin once put it, Kennedy is better described as an "extremist of varied enthusiasms." One of his enthusiasms is federalism, or the right of the states to govern. While Kennedy did author Lawrence, his comments at Wednesday's oral arguments make clear that he believes that federalism concerns are very much wrapped up in the marriage equality debate. As such, he is unlikely to side with the liberals and strike down Prop 8 as a violation of the Fourteenth Amendment.

With Kennedy on team federalism (read: team conservative), that leaves the court divided on the merits, with one vote, Roberts, in the middle. Roberts probably is inclined to agree with the federalists, but he is too shrewd a practitioner of the art of the law to thrust the court into a political thicket like gay marriage, particularly when he can steer the court clear of the thicket altogether. As such, expect him to write the majority opinion joined by four very unenthusiastic liberals, who will write concurring opinions decrying the fact that the court did not strike down Prop 8 as unconstitutional.

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In response, expect a feisty Scalia dissent and a short Thomas dissent.

United States v. Windsor (the Defense of Marriage Act case):
The Defense of Marriage Act is going down.

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The case before the court also involves standing issues, but the Chief Justice, once again, is the only one who appears to really care about them. This will not matter though, since this time Kennedy will be joining the four liberals to author the opinion. As previously mentioned, Kennedy is a federalism fanatic, and, true to form, he devoted most of his questions at oral arguments to quibbling with the idea that the federal government has any authority to legislate on the issue of marriage at all.

Basically, Kennedy believes that marriage is a state concern. As such, his "majority" will strike down DOMA on federalism grounds. This will please no one, however, because it will mean that the court will not answer the question that almost everyone else on the bench, liberal and conservative, appear to wish to answer (albeit in different ways): Does DOMA violate the Fifth Amendment's guarantee of equal protection?

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But the liberals will take what they can get: They will concur in judgment, agreeing that DOMA should be struck down. But they will write their own opinions expressing their belief that the law is unconstitutional.

And in my "upset" prediction, I believe Chief Justice Roberts will join Justice Kennedy's majority — with the caveat that he believes the case lacks standing.

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What it means for marriage equality:
DOMA will fall, which is good for gay rights. But it will fall for reasons wholly separate from the core question of whether the Fifth and Fourteenth Amendments of the Constitution protect a right for gay couples to marry. In other words, we will be right back where we started.

However, it should be said that these cases focused a great deal of attention on the issue of gay rights and marriage equality. That focus has lead to a surge in support from people on the left who have remained quiet. It has also demonstrated that attitudes towards marriage equality are changing on the right. That spotlight will serve the equality movement well going forward, demonstrating to people on the fence that supporting equality is very much a mainstream thing to do these days.

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Other stories from this section:

• The culture war was never a fair fight
• How gay rights tipped so quickly
• Government should get out of the marriage business

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Rush Limbaugh: Regardless of Supreme Court Ruling Gay Marriage Is 'Inevitable'

Limbaugh

In his radio show today, conservative talk show host Rush Limbaugh said defenders of traditional marriage have lost the battle, even though the Supreme Court won't hand down its decisions for another few months.

"I don't care what the Supreme Court does, this is now inevitable," Limbaugh said, "and it's inevitable because we lost the language on this."

Limbaugh took issue with the idea that the word marriage was already applied to gay couples. Therefore, he asserted, modifiers like "hetero" or "opposite-sex" are now at times added to denote a union between a man and a woman.

"I maintain to you that we lost the issue when we started allowing the word 'marriage' to be bastardized and redefined by simply adding words to it - because marriage is one thing, and it was not established on the basis of discrimination. It wasn't established on the basis of denying people anything," the radio host said. "Marriage is not a tradition that a bunch of people concocted to be mean to other people with. But we allowed the left to have people believe that it was structured that way."

On Wednesday, he made a similar prediction, saying that gay marriage would soon become legal "

Earlier this year, Limbaugh compared homosexuality to pedophilia.

Today, he claimed discrimination against gay couples "is not an issue."

"No one sensible is against giving homosexuals the rights of contract or inheritance or hospital visits. There's nobody that wants to deny them that. The issue has always been denying them a status that they can't have, by definition. By definition - solely, by definition - same-sex people cannot be married. So instead of maintaining that and holding fast to that, we allowed the argument to be made that the definition needed to change, on the basis that we're dealing with something discriminatory, bigoted, and all of these mystical things that it's not and never has been."

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Why the GOP should want to lose the Supreme Court's gay marriage case

A sweeping ruling affirming marriage equality would do the GOP a huge political favor

It would be natural to assume that most members of the Republican Party hope that the Supreme Court will not use the two gay-marriage cases it heard this week to issue a broad ruling affirming the constitutional right of gays and lesbians to marry. However, top officials in the GOP are reportedly praying for precisely that outcome, calculating that it would be the most effective way to remove gay marriage as a political liability.

Republican analysts see the party's opposition to gay marriage as a massive drag on their electoral prospects going forward. A solid majority of Americans now support marriage equality, and most worryingly for the GOP, more than 80 percent of young voters do as well. The Republican National Committee has described gay marriage as a "gateway" issue for a whole generation of new voters to identify with the Democratic Party, possibly doing lasting damage to the conservative party's brand. 

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But the GOP's base isn't budging, which is why some Republican operatives see their salvation in the Supreme Court, reports Alexander Burns at Politico:

[T]he Republican Party and its evangelical core have not moved with the rest of the country, tying the GOP — for now — to a position that’s anathema to the majority of younger, more educated, and politically independent voters; precisely the voters the party needs to begin clearing out the wreckage of two consecutive presidential defeats.

The only obvious way to square that political circle in the short term is through a sweeping Supreme Court decision — one that strikes down the Defense of Marriage Act and invalidates California’s Proposition 8 law banning same-sex marriage. [Politico]

Without the Supreme Court introducing the political equivalent of a deus ex machina, analysts say the Republican Party will have to evolve the hard way, meeting stiff resistance from its base. As Jay Bookman at The Atlanta Journal Constitution writes:

So as a Republican leader, you’re trapped between a rock and a hard place. You’re caught between Scylla and Charybdis, between the devil and the deep blue sea. You’re damned if you do and...well you get the point. The longer you stay where you are, the greater the damage to your party’s future. But if you try to reposition yourself, you alienate a good portion of the current GOP coalition. [AJC]

Of course, a far-reaching Supreme Court decision legalizing same-sex marriage could also create problems for Republicans, invigorating staunchly conservative primary voters and pushing the party further right. "This would obviously be a net win for national Democrats," conservative strategist Patrick Hynes tells Politico.

SEE MORE: Why even red-state Democrats are jumping on the gay marriage bandwagon

But as long as the legal status of gay marriage remains unsettled, and support for marriage equality continues to rise, Democrats are sure to milk the issue for all it's worth — to the GOP's detriment.

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Other stories from this section:

• 10 political words we should use more often
• 'Hillary super PAC' expands
• Is same-sex marriage inevitable?

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Supreme Court indicates it may strike down marriage law

By Lawrence Hurley

WASHINGTON (Reuters) - For the second day running, the Supreme Court on Wednesday will confront the issue of gay marriage, hearing arguments on a U.S. law that denies federal benefits to legally married same-sex couples.

Almost two hours of oral argument before the court will focus on the Defense of Marriage Act (DOMA), just a day after the nine justices considered the constitutionality of California's Proposition 8 ban on gay marriage.

Both cases come before the court as polls show growing support among Americans for gay marriage but division among the 50 states. Nine states recognize it; 30 states have constitutional amendments banning it and others are in-between.

Rulings in both cases are expected by the end of June.

DOMA limits the definition of marriage as between a man and a woman. It permits benefits such as Social Security survivor payments and federal tax deductions only for married, opposite-sex couples, not for legally married same-sex couples.

President Bill Clinton signed DOMA into law in 1996 after it passed Congress with only 81 of 535 lawmakers opposing it. Clinton, a Democrat, earlier this month said that times have changed since then and called for the law to be overturned.

In the California case argued on Tuesday, the justices seemed wary of endorsing a broad right for gay and lesbian couples to marry, as gay rights advocates had wanted. As a result, the Proposition 8 case is less likely to influence how the court approaches DOMA, which presents a narrower question.

The slightly lower-profile case being argued Wednesday focuses on whether Edith Windsor, who was married to a woman, should get the federal estate tax deduction available to heterosexuals when their spouses pass away.

Windsor's marriage to Thea Spyer was recognized under New York law, but not under DOMA. When Spyer died in 2009, Windsor was forced to pay federal estate tax because the federal government would not recognize her marriage. She sued the government, seeking a $363,000 tax refund.

Windsor's lawyers say the federal government has no role in defining marriage, which is traditionally left to states.

"It's the states that marry people," said James Esseks, an American Civil Liberties Union lawyer who is part of Windsor's legal team. "The federal government doesn't do that."

The roughly 133,000 gay couples nationwide, married in one of the nine states where it is legal, are not recognized as married by the federal government, Windsor's supporters say.

Various groups are calling for DOMA to be struck down, such as the Business Coalition for DOMA Repeal, whose members include Marriott International Inc, Aetna Inc, eBay Inc, and Thomson Reuters Corp, the corporate parent of the Reuters news agency.

OBAMA TURNS BACK ON DOMA

The Obama administration has agreed with Windsor that the section of law that defines marriage violates the U.S. Constitution's guarantee of equal protection under the law. The Justice Department has therefore declined to defend the statute, as it normally would when a federal statute is challenged.

That has left a legal group acting on behalf of the Republican-dominated U.S. House of Representatives, known as the Bipartisan Legal Advisory Group, or BLAG, as the party defending the federal law. Its lawyer, Paul Clement, will argue that there are several reasons to support Congress' decision to enact DOMA.

Noting the strong bipartisan support the law attracted when it was first enacted, Clement said in court papers that a move to strike it down as unconstitutional "would be wholly unprecedented."

Before the court reaches that bigger question, preliminary matters could prevent the court deciding the case. One is whether BLAG has legal standing.

If such a procedural issue prevents the court from deciding the case on the merits, Windsor would win her refund. Yet DOMA would remain on the books in parts of the country where courts have not ruled on it. Further litigation would likely ensue.

(Editing by Kevin Drawbaugh and Cynthia Osterman)

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Analysis: Supreme Court energizes gay rights even as it resists

By Joan Biskupic

WASHINGTON (Reuters) - After two days of Supreme Court arguments over same-sex marriage, the United States may be left with this irony: While the high court is not likely to alter the constitutional landscape for gays, the justices nevertheless have provided a rallying point for the gay-rights cause.

Three major legal outcomes appeared likely as the justices on Wednesday ended the second dramatic day of arguments in the most closely watched dispute of their current term:

* The court would not rule that gay people need special constitutional protection from discrimination.

* The court would not declare a nationwide right to same-sex marriage.

* At the same time, a majority would rule narrowly that the federal government must provide married same-sex couples the same benefits it gives their heterosexual counterparts.

Yet just as the nine black-robed justices made clear that they did not wish to play a leading role in the national conversation about same-sex marriage, they showed they could nonetheless raise its volume. Simply by agreeing to hear the two disputes - one over California's ban on same-sex marriage, the other over the federal law denying benefits to same-sex couples - the justices energized the debate.

Numerous public figures including former President Bill Clinton, who in 1996 signed the law forbidding same-sex couples from obtaining federal benefits, and prominent groups including the American Academy of Pediatrics in recent weeks came out vigorously in support of same-sex marriage and gay civil rights.

Individual members of Congress - Democrats and Republicans - suddenly voiced new support for gay marriage.

Perhaps most dramatically, Senator Rob Portman of Ohio, considered a possible future Republican presidential contender, earlier this month announced he was reversing his opposition to such same-sex marriage, citing the fact that his son two years earlier had told him he was gay.

Opponents of gay marriage have not witnessed any similar high-profile testimonials from people who were switching to their side. Recent opinion polls, taken in association with the Supreme Court's decision to take up the gay-marriage cases, have documented a surge in public support for same-sex unions.

The new cases also pushed the Obama administration to break new legal ground.

President Barack Obama had personally endorsed gay marriage but he had long asserted that same-sex marriage was a matter for the states to handle. At the last minute, however, his administration decided to enter the California dispute and argue that federal guarantees of constitutional equality forbid states from limiting marriage to heterosexuals.

The administration also contended that gays deserve extra constitutional protection from bias, as the Supreme Court has afforded women fighting sex discrimination.

Yet as much as the justices effectively propelled others to take a stand, they showed by their own comments and questions from the bench this week that they do not intend to be at the vanguard.

The lawyers who appeared on Tuesday and Wednesday were passionate in their presentations, yet none seemed to seize the justices and generate equal fervor.

To be sure, there were moments of excitement, including some sharp exchanges between lawyers and individual justices such as when Justice Elena Kagan challenged an attorney's assertion that government's overriding interest in marriage relates to procreation and childbearing.

'UNCHARTED WATERS'

There was also the suspense of what swing-vote Justice Anthony Kennedy might say. Kennedy sent conflicting messages at times, expressing concern about the children of gay parents who cannot marry but then suggesting the justices should be wise to stay out of "uncharted waters" on the issue.

There were moments of tedium, too, as the justices wrestled with procedural issues that could prevent them from deciding the merits of either case.

Such hurdles would likely prevent any decision on California's Proposition 8, the 2008 ballot initiative that defines marriage as only between a man and a woman. A majority of the justices signaled they might not reach the merits, most likely because California state officials have declined to defend the law and Proposition 8 backers may lack "legal standing" in the case.

A court majority most certainly would not conclude - as the challengers to Proposition 8 argued on Tuesday - that all 50 U.S. states must allow same-sex marriage. Currently nine states permit such marriages, along with Washington, D.C.

Nothing that emerged in oral arguments on Wednesday over a provision of the 1996 Defense of Marriage Act (DOMA) would suggest that the justices had any second thoughts about delving into the larger issues of gay marriage. In fact, their comments reinforced the notion that a majority on the generally conservative court is not ready to carve out new rights for gays.

The Obama administration and other challengers to DOMA had urged the court to declare that government rules tied to sexual orientation deserve "heightened" scrutiny, meaning that the government needs an exceedingly persuasive justification for the regulation.

If the court were to adopt such a level of constitutional protection for gays, as it has in the gender-discrimination context, bans on same-sex marriage would be legally undermined. But that proposition for tougher judicial scrutiny in gay-bias cases gained no traction at the Supreme Court.

Chief Justice John Roberts suggested that the national activity surrounding this week's cases might have demonstrated that gays are, in fact, a political force in no need of special protection.

"As far as I can tell, political figures are falling over themselves to endorse your side of the case," Roberts told lawyer Roberta Kaplan, who was representing a New York woman denied a federal estate-tax exemption because her spouse was another woman, not a man.

Roberts may have been referring to national figures including Portman whose endorsement of gay marriage coincided with the court's consideration of the matter.

In the same vein, a record number of "friend of the court" briefs were submitted in the paired cases, most favoring gay rights. In yet another unusual move, marking one of corporate America's most high-profile efforts on same-sex marriage, close to 300 businesses urged the court to strike down the DOMA restriction. (Thomson Reuters Corp, which owns Reuters, was among them.)

Outside the marble-columned Supreme Court building, demonstrators rallying for gay marriage dominated the scene.

So no matter how this court ultimately rules - a decision is expected by late June - it seems clear that the justices' mere involvement was a boost to the gay-rights cause, at least in the court of public opinion.

(Reporting by Joan Biskupic; Editing by Eric Effron and Will Dunham)

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Supreme Court wary of broad gay marriage ruling

By Lawrence Hurley

WASHINGTON (Reuters) - America's top court takes up the delicate and divisive issue of gay marriage on Tuesday when the nine Supreme Court justices consider the legality of a California ballot initiative that limits marriage to opposite-sex couples.

Tuesday will be the first of two days of oral arguments on the issue. On Wednesday, the court will consider the 1996 federal Defense of Marriage Act (DOMA), which limits the definition of marriage to opposite-sex couples.

Rulings in both cases are expected by the end of June.

In what is scheduled to be about three hours of deliberations with lawyers over the two days, the justices will have their say on what gay activists see as a key civil rights issue reminiscent of famous Supreme Court cases of the past, including Loving v. Virginia, a 1967 case in which the court invalidated bans on interracial marriage.

The cases come before the high court at a time when more states have legalized gay marriage. Last year three more - Maryland, Maine and Washington - did so, bringing the total to nine plus the District of Columbia.

"Never before in our history has a major civil rights issue landed on the doorstep of the Supreme Court with this wave of public support," said Theodore Boutrous, a lawyer for opponents of the California initiative, which is known as Proposition 8.

Strong opposition to gay marriage still exists, however, both among Republicans in Congress and in many states across the nation. A total of 30 states, including California, have constitutional amendments that ban gay marriage. Nine states, including California, recognize civil unions or domestic partnerships among same-sex couples.

Advocates for both sides plan to demonstrate outside the multi-columned Washington courthouse. Those who plan to attend include Chief Justice John Roberts' cousin Jean Podrasky, a lesbian from California who would like to marry her partner.

"There's no fundamental right to same sex marriage in the U.S. Constitution," said Austin Nimocks, a member of the legal team arguing in support of the California law.

Some legal experts think that with the issue unsettled in the states, a majority of the justices might not be inclined to make any sweeping pronouncements on the issue as the democratic process plays out.

MULTIPLE OPTIONS

There are various ways in which they could do that as the Proposition 8 case presents the justices with multiple options.

The justices could proclaim that gay marriage bans are constitutionally unsound. They could uphold Proposition 8 as a law with a legitimate purpose that was approved by a majority of voters in California. They could also plot a middle path by striking down the law without making any broad pronouncements about whether gay marriage bans in other states that have them should be struck down.

Another way the court could rule might be viewed as an anticlimax of sorts: The justices could simply decide that it cannot rule on the merits because of the procedural complexities that brought the case to the high court.

The state of California declined to support Proposition 8 when the plaintiffs filed suit in 2009 in a federal district court in San Francisco, meaning there was no party defending the law until its proponents entered the case. The federal judge struck the law down, a ruling that was upheld by the San Francisco-based 9th U.S. Circuit Court of Appeals.

A Supreme Court decision concluding that the law's backers do not have legal standing to defend the law would wipe out the appeals court decision, but leave the district court decision that struck down Proposition 8 on the books.

The way the justices rule could depend in large part on the likely swing voter, Justice Anthony Kennedy. Although a conservative appointed by President Ronald Reagan, Kennedy has in the past authored two opinions that expanded gay rights.

Lawyers representing two same-sex couples in California who want to marry are hoping the justices will go big and are making the most sweeping arguments.

The counsel for Kris Perry and Sandy Stier and Paul Katami and Jeff Zarrillo will argue that under the U.S. Constitution's equal protection guarantee, there is a fundamental right for people to marry someone of the same sex.

Kris Perry, who has raised four children with her partner, Sandy Stier, was hopeful and optimistic.

"We have been waiting for a long time to get married," she said last week. "We are very excited to have the end in sight."

(To follow oral arguments both days, visit the Reuters live blog at http://reut.rs/scotus1)

(Reporting by Lawrence Hurley; Editing by Howard Goller and David Brunnstrom)

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Analysis: Supreme Court seems poised to avoid same-sex marriage tide

By Joan Biskupic

WASHINGTON (Reuters) - For nearly four years, proponents of same-sex marriage have been strategically building a test case aimed at convincing the conservative-leaning Supreme Court to declare that gay marriage is a constitutional right. The advocates felt they were ready.

But on Tuesday, after an intense, wide-ranging hearing, it appeared the justices were not.

Over the course of the 80-minute session, it seemed that for the array of gay rights supporters across the country, neither their greatest hopes nor worst fears would be realized.

A majority of the justices suggested by their comments and questions that they were not prepared to rule on whether a fundamental right exists for gays and lesbians to marry. Some justices even suggested that the specific case before them, testing the validity of a 2008 California ballot initiative that defined marriage as only between a man and woman, might not be resolved on the merits.

The justices return to the bench on Wednesday for the narrower question of whether the federal government may deny benefits to married same-sex couples that are allowed their opposite-sex counterparts.

The court has several options on how it might resolve that case, from a finding that the Republican-dominated congressional group defending the law lacks "legal standing," resulting in dismissal, to a decision striking down the provision and robustly declaring that all laws tied to sexual orientation deserve tough judicial scrutiny.

That latter stance could eventually pave the way for gay marriage laws nationwide, well beyond the nine states and District of Columbia that now allow it. But from the tone of arguments on Tuesday, a majority would likely resist that route.

Justices across the ideological spectrum suggested they wanted to tread a cautious path in the cases that have become the most closely watched of the term.

The white marble and crimson velvet courtroom was crowded with nearly 400 spectators, some of whom had waited since last Thursday, in snow and rain, for seats. The paired cases have drawn a record number of "friend of the court" briefs and become the occasion for near daily declarations in support of gay marriage from public figures and prominent organizations.

'UNCHARTED WATERS'

Yet the justices do not seem ready for a role on centerstage in the matter. Justice Sonia Sotomayor, a liberal, questioned whether the issue should percolate a little longer in the states. Justice Samuel Alito, a conservative, asserted that the notion of same-sex marriage was newer than today's ubiquitous cellphones and perhaps not ready for judicial intervention. And Justice Anthony Kennedy, the usual swing vote, likened the court's possible journey in the case to going into "uncharted waters" or even over "a cliff."

If the court avoids the looming question about a fundamental right, it could disappoint the two main lawyers pushing for same-sex marriage - Theodore Olson, who argued Tuesday, and David Boies, the legal partner who sat at his side. Yet, it would also mean that the worst-case scenario envisioned by other gay rights supporters would be avoided, too.

Their concern was certainly understandable. The Supreme Court's past cases on gay rights in narrower contexts, in 1996 and 2003, were vigorously fought. Four of the current nine justices are new to the gay rights issue. The bench is not as predictable as in the past, and overall, because Alito replaced Sandra Day O'Connor in 2006, the court may be more conservative on social policy.

So in May 2009, when Olson and Boies, former opponents from the 2000 presidential election case of Bush v. Gore, suddenly filed their challenge to Proposition 8, many gay rights activists and leaders expressed concern. Advocates who had been concentrating their efforts in the states worried that a federal case could backfire with a decision upholding Proposition 8 and declaring no constitutional right to same-sex marriage.

But that outcome now seems unlikely. While Supreme Court justices sometimes reverse course from the tone of arguments, it seems no major constitutional ruling will emerge from the California case of Hollingsworth v. Perry.

Justices on the right and left questioned whether proponents of Proposition 8, who took up its defense after California officials declined, have legal standing.

"Have we ever granted standing to proponents of ballot initiatives?" Justice Ruth Bader Ginsburg asked lawyer Charles Cooper, representing Proposition 8 supporters. Cooper said no but stressed that California's Supreme Court had ruled that under state law the backers of Proposition 8 should be allowed to defend it.

Chief Justice John Roberts voiced doubt, saying that "a state can't authorize anyone to proceed in federal court," because federal judges themselves determine who may bring claims.

LEGAL STANDING

Yet these questions of legal standing were in the case when the appeal from Proposition 8 supporters arrived on the Supreme Court's doorstep last year. And the court nonetheless took the appeal. It requires only four of the nine justices to accept a case for oral arguments; it takes five to resolve it.

Perhaps the thorny procedural hurdles became more obvious as the justices prepared for Tuesday's hearing. Or, perhaps that area might be the only one of common ground. There appeared to be no majority for either side's constitutional assertions.

Cooper argued that the states may limit marriage to heterosexual couples because of their interest in procreation and child rearing. Justice Elena Kagan, particularly, hammered at that notion, asking whether the court could block an older couple, possibly beyond their fertile years, from marrying.

Olson argued that Proposition 8 "walls off gays and lesbians from marriage," the most important relationship they might have. Roberts expressed doubt that California was plainly excluding a particular group. "When the institution of marriage developed historically, people didn't get around and say 'let's have this institution, but let's keep out homosexuals.' The institution developed to serve purposes that, by their nature, didn't include homosexual couples."

Justice Antonin Scalia, who has been the most outspoken opponent of gay rights on this court, challenged Olson to say exactly when same-sex marriage became the constitutional norm.

Olson could not but rather asserted: "It was constitutional when we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control. There is no specific date in time. This is an evolutionary cycle."

(Reporting by Joan Biskupic; Editing by Eric Effron and Eric Beech)

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Senators Abandon 'Discriminatory' DOMA Before Supreme Court Arguments

Three Democratic senators have reversed their stance on the Defense of Marriage Act in the past three days before the Supreme Court hears oral arguments on the law that limits marriage to one man and one woman.

Sens. Claire McCaskill, D-Mo., John "Jay" Rockefeller, D-W.V., and Mark Warner, D-Va., said today and Sunday that they no longer support a federal law banning gay marriage. The Supreme Court plans to hear oral arguments in a case challenging that law Wednesday, after it considers a law banning same-sex marriage in California Tuesday.

McCaskill made the announcement on her Tumblr blog Sunday.

"I have come to the conclusion that our government should not limit the right to marry based on who you love. While churches should never be required to conduct marriages outside of their religious beliefs, neither should the government tell people who they have a right to marry," McCaskill wrote. "Good people disagree with me. On the other hand, my children have a hard time understanding why this is even controversial. I think history will agree with my children."

McCaskill refused to take a hard stance on the issue in response to President Obama's coming out in favor of gay marriage in May, according to the Springfield, Mo.-based News Leader. The paper reported that she supported civil unions but had expressed opposition to same-sex marriage.

She was in good company. Only two Democrats in competitive Senate races publicly supported the president after his announcement.

Rockefeller was not facing re-election in 2012, but he would be next year if he were running again. The senator from West Virginia said in January that he plans to retire at the end of his term, leaving him just shy of three decades in office.

His statement today largely echoed McCaskill's.

"Like so many of my generation, my views on allowing gay couples to marry have been challenged in recent years by a new, more open generation. Churches and ministers should never have to perform marriages that violate their religious beliefs, but the government shouldn't discriminate against people who want to marry just because of their gender," Rockefeller said in a statement emailed to ABC News today.

"Younger people in West Virginia and even my own children have grown up in a much more equal society and they rightly push us to question old assumptions - to think deeply about what it means for all Americans to be created equal. This has been a process for me, but at this point I think it's clear that DOMA is discriminatory. I'm against discrimination in all its forms, and I think we can move forward in our progress toward true equality by repealing DOMA."

Rockefeller voted for DOMA when it passed under President Clinton in 1996. But in 2004, he voted against an amendment to the Constitution banning same-sex marriage, saying both his state and federal government already had laws limiting marriage to one man and one woman.

"I have heard from many West Virginians who are worried about morality in America," Rockefeller wrote after that vote. "They want to be sure that marriage is protected for themselves and for their children. I myself am not comfortable with same-sex marriage, and I want to assure every West Virginian that our definition of marriage - and our right to define marriage as we believe it - is not in jeopardy."

Sen. Warner announced his change of heart in a statement on his Facebook page.

"I support marriage equality because it is the fair and right thing to do," he reportedly wrote. "Like many Virginians and Americans, my views on gay marriage have evolved, and this is the inevitable extension of my efforts to promote equality and opportunity for everyone.

"I believe we should continue working to expand equal rights and opportunities for all Americans."

The three Senate Democrats join a long list of Republicans who have changed their minds about DOMA, many of whom now embrace the concept of gay marriage.

Sen. Rob Portman, R-Ohio, announced that he supports gay marriage, which followed his son's saying that he is gay. Several other politicians have referenced personal encounters with gay and lesbian family members as leading them to rethink their stances on the issue.

More than 80 upper-level Republicans also signed their support for same-sex marriage in an amicus brief for the Supreme Court last month.

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