(WASHINGTON) -- The outcome of the challenge to California’s same-sex marriage ban is uncertain as the Supreme Court is divided on the constitutional question and skeptical of an issue of standing that could prevent the justices from reaching a wide-ranging decision on the merits.
On Tuesday, all eyes were on Justice Anthony Kennedy, who both expressed skepticism on the appropriateness of this case being heard, and deep empathy for the children of same-sex couples yearning for their parents to be treated like everyone else’s.
While liberals pressed the lawyers on why gay couples shouldn’t be allowed to get married, comparing them to other prospective spouses that don’t procreate -- like the elderly and the infertile -- conservatives pummeled defenders of same-sex marriage for arguing that there’s an urgency to have the court overturn bans nationwide.
“When did it become unconstitutional to exclude homosexual couples” from marriage, Scalia asked Prop 8 opponent Ted Olson in an intense exchange. “1791?”
Justice Samuel Alito pointedly asked government lawyer Donald Verilli why the court was being asked to intervene now, when the implications of gay marriage aren’t yet fully understood.
“Same sex marriage is very new,” Alito said. “It may turn out to be a good thing, it may turn out to be not so good.” Alito suggested it would be wrong for the court to weigh in on a societal construct that is “newer than cell phones and the Internet.”
Before the court can decide whether gays and lesbians have a “fundamental right” to marry the partners of their choosing, justices must first determine whether the Prop 8 case came to them properly.
California’s governor and attorney general refused to defend Proposition 8 after it was struck down by the trial court. A group of petitioners who sought to get it on the ballot are representing Prop 8 in Washington.
“How does [state officials’ lack of interest in pursuing an appeal] create an injury to [the petitioners], separate from any other taxpayer?” asked Justice Sonia Sotomayor.
The lawyer for the backers of Prop 8, Charles Cooper, was hard-pressed to answer.
While Kennedy suggested that not allowing someone to defend a voter-approved law not backed by state officials could “thwart the initiative process,” he later acknowledged a “substantial question” on standing.
“I’m wondering if the case was properly granted,” Kennedy admitted, stunning the courtroom.
But when discussing the merits of the challenge to the California ban, Kennedy also struck the most empathetic tone of any of the justices, urging his colleagues to hear “the voices of these children -- 40,000 children” currently being raised by same-sex couples in the state.
“They want their parents to have full recognition,” he said.
The Supreme Court is slated to issue rulings by the end of June.
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