High Court Split in Gay Marriage Questioning

SCOTUSblog predicts a no-decision

By Kevin Spak,  Newser Staff

Posted Mar 26, 2013 11:46 AM CDT

(Newser) – The Supreme Court has finished hearing the arguments in the Proposition 8 case, and prognosticators are busy reading the tea leaves for what it might be thinking. Here's what went down:

  • Ruth Bader Ginsberg, Elena Kagan, Sonia Sotomayor, and, perhaps surprisingly, John Roberts, peppered Charles Cooper, the lead attorney for Proposition 8, with questions about whether California voters had the authority to appeal a lower court ruling blocking Prop 8, USA Today reports.
  • Antonin Scalia and Samuel Alito came out sounding "very hostile to the idea of the court imposing same-sex marriage," CNN's legal analyst says, and they were consistently the voices in favor of the same-sex marriage ban.

  • Perpetual swing voter Anthony Kennedy seemed focused on the harm banning same-sex marriage might have on the children of gay couples. "The voice of the children is important, don't you think?" he asked. But Scalia countered that having same-sex parents might be harmful to children in the first place.
  • At one point, Cooper argued that procreation was a vital state interest, and that same-sex couples don't address it, the Washington Post reports. Elena Kagan replied by asking if, in that case, the state shouldn't allow marriages of people over age 55. "I assure you," she said, "if both the man and the woman are over 55, there are not a lot of children coming out of that marriage."
  • Clarence Thomas, as usual, said nothing.
  • Prognosis of Tom Goldstein at SCOTUSblog: The court doesn't have the wherewithal to strike down or uphold Prop 8, with Kennedy seemingly uneasy with either position; he was "deeply concerned" that the court could be acting prematurely, with the relative newness of same-sex marriage. Goldstein thinks either Roberts will join the liberal justices in declaring that the state doesn't have the standing to appeal, or the justices will fail to reach a majority. Either way, lower court rulings against Prop 8 would stand, but nationally the issue would remain up in the air.
  • Theodore Olson, one of the high-profile lawyers arguing for marriage equality, had a different take. Asked if the justices would make a broad ruling, he replied, "Based upon the questions that the justices asked"—here he paused briefly for effect—"I have no idea."

People wait in line outside of the US Supreme Court in Washington in anticipation of Tuesday's Supreme Court hearing on California's Proposition 8 ban on same-sex marriage, March 23, 2013.
People wait in line outside of the US Supreme Court in Washington in anticipation of Tuesday's Supreme Court hearing on California's Proposition 8 ban on same-sex marriage, March 23, 2013.   (AP Photo/Jacquelyn Martin)
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