This morning's Supreme Court arguments over California's Proposition 8, which banned same-sex marriage, broke down just as one might expect: liberals to the left, conservatives to the right, and Justice Anthony Kennedy walking a tightrope in between.
Kennedy, considered the court's swing vote, expressed concern that children of same-sex couples — nearly 40,000 of them in California, according to the arguments — want their parents' relationships legally recognized. But the associate justice also implied that gay marriage proponents, in pushing for a broad ruling that would legalize same-sex unions nationwide, had asked the court to take the country into "uncharted waters."
Voters passed Prop 8, which enshrined traditional marriage in the California constitution, in 2008 by a 52-48 margin. After a lower court ruled the measure unconstitutional in 2010, state officials, including now-Gov. Jerry Brown, declined to appeal. So supporters of the amendment took up the fight instead. But the justices this morning appeared split on whether such a maneuver is allowed. Kennedy, for his part, seemed doubtful, and questioned the court's decision to hear the case in the first place.
"I just wonder if the case was properly granted," he said.
The press section in the court was filled to capacity this morning, with dozens of reporters tucked into an alcove with no view of the bench, straining to divine meaning from the tones of the justices' voices and the phrasings of their questions. After more than an hour of oral arguments, many court-watchers now predict a narrow ruling — or none at all.
Here's the lede of the New York Times story published immediately following arguments:
As the Supreme Court on Tuesday weighed the very meaning of marriage, several justices seemed to have developed a case of buyer’s remorse about the case before them. Some wondered aloud if the court had moved too fast to address whether gay and lesbian couples have a constitutional right to marry.
Tom Goldstein at SCOTUSblog.com, for instance, suggests that the most likely outcomes are:
1) The court decides that Prop 8 defenders lack the standing to bring the appeal.
2) The court dismisses the case because justices are unable to form a majority.
Kennedyology, like Kremlinology, is an art, not a science. As last summer's unexpected ruling on Obamacare demonstrated once again, trying to predict the Supreme Court is a dangerous game. But if Goldstein's instincts prove true, then the most likely outcome is further litigation, countless more column inches of commentary, and a ruling that pleases no one — not the shouting activists outside the court wearing rainbow flags, nor the marching protesters chanting "one man, one woman."
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