http://news.yahoo.com/blogs/ticket/prop-8-supreme-court-justices-spar-over-gay-155005999--politics.htmlProp 8: Supreme Court justices spar over gay marriage case3/26/13
Supreme Court justices expressed skepticism Tuesday that the proponents of California's gay marriage ban have the legal right to defend the proposition in court.
Several of the justices closely questioned the attorneys in the landmark case over the procedural legal issue, called standing, 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.
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 wed. "They want their parents to have full recognition and full status," Kennedy said. "The voice of these children is important in this case," he said.Later in the oral arguments, however, Kennedy said he wondered whether the case should have been granted at all, again mentioning the standing issue.
"You're really asking for us to go into uncharted waters," Kennedy said, adding that there's a "substantial question" over whether Prop 8's defenders have the standing to bring suit.
Kennedy also disagreed with a comparison of this case to Loving vs. 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.
The standing issue has dogged supporters of Prop 8 since former Gov. Arnold Schwarzenegger and California's attorney general declined to appeal a lower court's decision striking down the ban.
A coalition of people who helped place Prop 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 Prop 8 is struck down in order to have standing to appeal.
The state Supreme Court in California 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. Chief Justice John Roberts noted that the court had never "allowed anything like it" in the past.
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.
Even if the justices get past the standing hurdle, they did not appear to be poised to issue a broad ruling affirming gay marriage.
But the Court's four more liberal justices, along with swing justice Kennedy, closely questioned the Prop 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 also noted 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.
Many legal experts believe Kennedy will join with the four liberals on the court to write an opinion that strikes down Prop 8 on narrow grounds that will not affect the gay marriage bans in effect in dozens of other states. But during arguments, Kennedy criticized the Ninth Circuit opinion narrowly striking down Prop 8 in California as advancing an "odd rationale," which suggests he may not want to uphold it.
