An unprecedented Supreme Court case that advocates on both sides hoped might settle the question of gay marriage once and for all may be decided on a narrow procedural issue instead.
The justices on Tuesday expressed skepticism in oral arguments that the proponents of California's gay marriage ban, called Proposition 8, have the legal right, or "standing," to defend the ban in court. Several justices closely questioned the attorneys over the procedural issue, suggesting they may be poised to throw the case out without significantly addressing the broader issue of whether same-sex couples have a fundamental right to marry.
The 2008 voter-approved gay marriage ban in the nation's most populous state has been the target of lawsuits for four years, challenged by gay couples who say it discriminates against them based on their sexual orientation.
Public opinion on gay marriage in the U.S. has shifted rapidly in the five years since Proposition 8 was enacted—a slight majority for the first time now say they believe gay couples should be allowed to wed, and two lower courts have struck Proposition 8 down as discriminatory. Still, the vast majority of states outlaw gay marriage.
Justice Anthony Kennedy, the court's conservative-leaning swing vote and the author of two major decisions in favor of gay rights, appeared to be on the fence in the controversial case. Early in the arguments, he suggested that the estimated 40,000 children being raised by same-sex couples in California might be harmed by their parents' inability to marry.
"They want their parents to have full recognition and full status," Kennedy said. "The voice of these children is important in this case."
Later in the oral arguments, however, Kennedy said he wondered whether the case should have been granted at all.
"You're really asking for us to go into uncharted waters," Kennedy said, adding that there's a "substantial question" over whether Proposition 8's defenders have the standing to bring suit.
Kennedy also disagreed with a comparison of this case to Loving v. Virginia, the landmark 1967 Supreme Court case that struck down laws banning interracial marriage. He noted that such anti-miscegenation laws had been illegal in other countries for hundreds of years, unlike gay marriage, which is still relatively new all around the world.
Kennedy also lamented that research into how same-sex couples and their children fare is new. “We have five years of information to pose against 2,000 years of history,” he said.
The standing issue has dogged supporters of Proposition 8 since former Gov. Arnold Schwarzenegger and California's attorney general declined to appeal a lower court's decision striking down the measure. A coalition of people who helped place Proposition 8 on the ballot in the first place stepped up to defend the ban in court without financial help from the state. That group must prove they would experience a direct injury if Proposition 8 is struck down in order to have standing to appeal.
California's highest court ruled that the coalition had standing to pursue the case, but justices from both the liberal and conservative wings of the court appeared skeptical of that ruling. Justice Sonia Sotomayor asked whether it was appropriate for supporters of a ballot initiative to defend it in court, rather than the state itself.
If the justices decide to throw out the case on standing, the lower court's decision allowing gay marriage will most likely be the law of the land in California but would not extend to other states.
Even if the justices get past the standing hurdle, it's unclear whether they would issue a broad ruling affirming gay marriage. That depends on Kennedy, who is widely believed to be the deciding vote.
The Court's four more liberal justices, along with swing justice Kennedy, closely questioned the Proposition 8 defenders' attorney about why the government has a reason to exclude gay people from marriage.
Justice Elena Kagan asked attorney Charles Cooper to explain how allowing same sex couples to marry would hurt heterosexual marriage. Cooper replied that he did not think that was the question at hand in the case, at which point Kennedy interjected and asked if he was "conceding the point" that gay marriage does not cause harm.
Cooper answered that there may be unforeseen consequences of broadening the "age-old, bedrock" institution of marriage to include gay people.
But even though Kennedy appeared skeptical of the argument that the government has a reason to deny same-sex couples marriage, he also expressed frustration with the quality of the case, mentioning both the standing issue and some of the odder legal arguments advanced by the lower courts.
Kennedy criticized the Ninth Circuit Court of Appeals decision striking down Proposition 8 narrowly in a way that affected only California, calling it an "odd rationale." The judges in that case said California was discriminating against gay couples by providing them with all the legal benefits of marriage minus the name. Kennedy and other justices said such reasoning appears to punish states that want to offer gay couples more rights while leaving untouched the many states that provide no legal recognition whatsoever to these couples.
Many legal experts believe that Kennedy, because of his legacy of supporting gay rights on the bench, will not vote to uphold Proposition 8. But the oral arguments do not give many hints as to how he will proceed. He may join with the four liberals to write a narrower opinion striking down Proposition 8 that finds a different line of argument from the Ninth Circuit's, or the justices may reject the case on standing, which would effectively legalize gay marriage in California while deferring the larger question of gay marriage for another time. The justices could also fail to reach a majority altogether, which would leave in place the Ninth Circuit's decision striking down Prop 8 only in California.
The court will hear arguments Wednesday on the constitutionality of DOMA, the federal Defense of Marriage Act. Decisions in both cases are not expected until June.