Justices Could Skirt Ruling on Proposition 8

      The Supreme Court justices appeared to open the possibility of skirting a definitive ruling on California’s gay-marriage ban in Proposition 8 after hour-long arguments on Tuesday, but a majority of the justices also signaled at least tentative support for marriage rights for gays and lesbians.
      At Chief Justice John G. Roberts Jr.’s urging, all three attorneys in the case were directed to begin their presentations by addressing an important jurisdictional issue: whether the supporters of the 2008 ballot measure have legal standing to defend it in federal court after state officials declined.
      By the end of the argument, observers were counting five justices — Roberts and liberal justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — as possible votes to rule that the initiative’s sponsors could not appeal the lower court decisions striking down the measure. “Once it’s passed, they have no proprietary interest in it,” Ginsburg commented early in the argument.
      A ruling to that effect could wipe Prop 8 off the books and reinstate gay marriage in California. Supporters might try to argue, however, that the lower court ruling applies only to the two same-sex couples who filed the challenge in 2009.
      The only Californian on the court, Justice Anthony M. Kennedy, seemed more open at times to allowing the initiative’s sponsors to take the state’s place in defending the measure. Late in the session, however, he raised the possibility that the court could simply dismiss the case as one that the justices should not have agreed to review at all. “I just wonder if the case was properly granted,” Kennedy said.
      The jurisdictional issue had hung over the case from the start, but many observers had assumed the court was prepared to get over that hurdle when it agreed to review the case in December. For his part, Justice Antonin Scalia made clear his view to that effect on Tuesday. “It’s too late for that, too late for that now, isn’t it?” Scalia said, referring to a possible dismissal.
      On the merits of the issue, the justices appeared divided along predictable conservative-liberal lines. All four liberal justices appeared skeptical of banning marriage for gays and lesbians. Kagan pointedly challenged Charles Cooper, attorney for the Prop 8 supporters, to specify what harm would result “to the institution of marriage or to opposite-sex couples” from allowing same-sex couples to marry. Cooper initially deflected the question, but pressed by Kennedy for a direct response said it was “impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be.”
      From the opposite side, Roberts, Scalia, and Samuel A. Alito Jr. voiced doubts about what Cooper continually referred to as “redefining marriage.” Scalia pointed to what he depicted as an open question among sociologists about the effects of raising children in same-sex households. “There’s no scientific answer to that question at this point in time,” Scalia said. The fourth conservative, Clarence Thomas, maintained his customary silence during the argument, but he is counted as unlikely to support judicially imposed recognition of same-sex marriage.
      Kennedy appeared to tilt his swing vote toward recognizing marriage rights for same-sex couples, most pointedly in a question about the estimated 40,000 children being raised by same-sex parents in California under existing law. “They want their parents to have full recognition and full status,” Kennedy said to Cooper. “The voice of those children is important in this case, don’t you think?”
      Despite the skeptical questioning of Cooper, lawyers on the opposite side — former U.S. solicitor general Theodore Olson for the plaintiffs and Solicitor General Donald Verrilli for the Obama administration — failed to find strong support from the bench for an agreed-on basis for invalidating Prop 8. The justices had three options before them: a broad ruling for same-sex marriage rights nationwide, advocated by Olson; a narrower stance advocated by the government affecting California and seven other states that recognize civil unions but not marriage for same-sex couples; and the narrowest position, taken by the Ninth U.S. Circuit Court of Appeals, that would apply only to California for first granting and then repealing same-sex marriage rights.
      Olson opened with a broadly framed plea for same-sex marriage rights, but when pressed by Scalia he backpedaled. “You could write a narrower decision,” Olson said. But Olson faced doubts from Kennedy in arguing for the Ninth Circuit’s rationale. California was being penalized, Kennedy said, for “not going far enough” to protect same-sex couples. “That’s a very odd rationale,” Kennedy said.
      In his turn, Verrilli also seemed to make little headway with the so-called “eight-state solution” that would mandate gay marriage rights in states that have already approved civil unions. “A state that has made considerable progress has to go all the way,” Ginsburg asked skeptically, but a state that “has done absolutely nothing at all . . . can do as it will.”
      Roberts was liberal with the clock for all three lawyers, allowing the scheduled hour to expand to 77 minutes. “The case is submitted,” Robert said as marshal Pamela Talkin prepared to gavel the session to an end. The court meets again at 10 a.m. on Wednesday to hear a second gay-marriage-related case: the constitutional challenge to the federal Defense of Marriage Act (DOMA).