Supreme Court Looks Ready to Take a Pass on a Constitutional Right to Gay Marriage

The hottest ticket in DC today was a seat in the Supreme Court, where the justices heard oral arguments in the first of two days of hearings concerning same-sex marriage. The first case up was Hollingsworth v. Perry, better known as California's Proposition 8. Entitled director Rob Reiner was the first person in the public line to watch the arguments this morning, due to the fact that he paid someone to wait for him. ("He declined to talk about that aspect," reported the Huffington Post.) The rest of us schmoes, including cabals of protesters who had come to Washington to support or attack gay marriage, had to wait outside as news slowly trickled from the inner depths of the SCOTUS, where cameras and electronic equipment are banished.

The arguments wrapped up at around 11:45 AM EST. Here is the most important information we've got thus far, based largely on tweets from reporters who were taking notes during the proceedings.

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Justices Sotomayor and Bader Ginsburg, two noted liberals on the court, were early in their aggressive questioning of the petitioners supporting Prop. 8.

Justice Kennedy suggested that the thousands of children being raised by same-sex couples in California were negatively impacted by the marriage ban.



According to Bloomberg, Kennedy noted, "They want their parents to have full recognition and status. The voices of those children is important in this case, isn't it?" Justice Scalia responded to these queries by saying there was "considerable disagreement" as to whether same-sex parenting helps or injures children.

Scalia added that "there is no answer to that scientific question," seemingly ignorant of the fact that just last week the American Academy of Pediatrics came out in support of same-sex marriage, citing studies showing that children are not disadvantaged by gay parents.

The Wall Street Journal reports that Chief Justice John Roberts allowed Charles Cooper, the attorney representing Prop. 8's defenders, to get only briefly into his support of traditional marriage before interrupting him and asking him to explain whether his clients even had "standing" to defend upholding Prop. 8.

Chief Justice Roberts questioned whether Mr. Cooper's clients were any different from any other citizens of California to be able to defend Prop 8, when the state's elected officials refused to do so. Mr. Cooper argued that the California Supreme Court had argued that the citizens had a vital interest to have the law defended and had agreed his clients could do so, since the state was refusing to defend the initiative approved by voters.

Roberts reportedly told Cooper, "I don't think we've ever allowed anything like that."

At one point, Cooper attempted to make the case that gay couples do not advance the state's interest in procreation and child-rearing, leading Justices Breyer, Kagan, and Ginsburg to question whether that were a factual argument.


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The healthy doses of skepticism with which many of the justices approached Cooper today has led several experts to believe that Prop. 8 is on shaky ground, but most are doubtful gay-rights advocates will see a sweeping victory. The questions about standing could mean the SCOTUS would vacate the Ninth Circuit's ruling last year that Prop. 8 is unconstitutional. Also, Justice Kennedy, the apparent swing vote on this case, suggested that the case be dismissed, as he was "deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain," according to SCOTUS Blog. This could mean one of two things, writes Tom Goldstein:

If those features of the oral argument hold up—and I think they will—then the Court's ruling will take one of two forms. First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing. That would vacate the Ninth Circuit's decision but leave in place the district court decision invalidating Proposition 8. Another case with different petitioners (perhaps a government official who did not want to administer a same-sex marriage) could come to the Supreme Court within two to three years, if the Justices were willing to hear it.

Second, the Court may dismiss the case because of an inability to reach a majority. Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him. Others on the left may agree. That ruling would leave in place the Ninth Circuit's decision.

Either scenario would be a slight victory for same-sex marriage proponents, but nothing too dramatic. The very significant ruling could come in tomorrow's DOMA arguments.

Here is audio of today's arguments, and below is the full transcript.




[Image by Jim Cooke.]