PHOTO: TheDCCenter's FLICKR
The Supreme Court heard more than an hour of oral arguments today in Hollingsworth v Perry to decide the fate of California's Proposition 8, the voter-approved same-sex marriage ban passed in November 2008.
The justices signaled "they are reluctant to embrace a broad ruling finding a fundamental right to marriage for gays and lesbians across the United States," reports Reuters.
Swing vote Justice Anthony Kennedy raised concerns about the court entering "uncharted waters" on an issue that divides the states.Kennedy even raised the prospect of the court dismissing the case, a relatively unusual move that would leave intact a federal Appeals Court ruling that struck down the law, known as Proposition 8.
Earlier in the argument, the justices probed lawyers on both sides on the technical issue of whether California opponents of gay marriage had a right to be heard in federal court. Although there was no apparent consensus on that point, if the court were to find the proponents did not have standing it would not reach the merits and then the federal District Court ruling that struck down Proposition 8 would be left intact.
SCOTUSBlog offered a similar take after these tweets: "#Prop8 unlikely to be upheld; either struck down or #scotus won’t decide case" and "#SCOTUS won’t uphold or strike down #Prop8 bc Kennedy thinks it is too soon to rule on #ssm. #Prop8 will stay invalidated."
The bottom line, in my opinion, is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.
Several Justices seriously doubt whether the petitioners defending Proposition 8 have “standing” to appeal the district court ruling invalidating the measure. These likely include not only more liberal members but also the Chief Justice. If standing is lacking, the Court would vacate the Ninth Circuit’s decision.
The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy. For the more liberal members of the Court, there was no clarity on how broadly they would rule.
The upshot of either scenario is a modest step forward for gay rights advocates, but not a dramatic one. The Court would stay its hand for some time for society to develop its views further. But combined with a potentially significant ruling in the DOMA case being argued tomorrow, the Term will likely nonetheless end up as very significant to gay rights.
Audio and transcript of today's oral arguments will be released later. We will post when available.
This is the first time that the Supreme Court has heard arguments on the constitutionality of equal marriage. The high court will hear oral arguments on the Defense of Marriage Act tomorrow.