In a historic oral argument on a challenge to state laws that limit marriage to heterosexual couples, the Supreme Court indicated Tuesday that it might not strike down such laws.
The justice whom many observers view as the swing vote in the case, Justice Anthony Kennedy, voiced worry at one point during the argument that proponents of same-sex marriages were asking the court to issue a decision that would “go into uncharted waters.”
After the oral argument, Pete Williams of NBC News reported that it seemed “quite obvious that the U.S. Supreme Court is not prepared to issue any kind of sweeping ruling” declaring that same-sex couples have a constitutional right to marry.
Williams said there seemed to be “very little eagerness” from any of the justices to “embrace that broad a ruling.”
LISTEN: Audio of the oral arguments
At issue Tuesday was California’s Proposition 8, the state constitutional amendment enacted by voters in 2008 that limits marriage to one man-one woman couples. Those seeking to have the court strike down Proposition 8 argue that the Equal Protection Clause of the Fourteenth Amendment includes a right for same-sex couples to marry.
Williams said that both the liberal and the conservative justices seemed wary of issuing a decision that would apply to any state outside of California.
It seemed possible the court would not issue any ruling on marriage at all – deciding instead that it had made a mistake in even agreeing to hear the case since the plaintiffs, supporters of Proposition 8, might lack the legal standing to bring the suit.
“I just wonder if the case was properly granted,” Kennedy said at one point to attorney Theodore Olson who was representing those challenging the California law.
And a few justices seemed to imply that it might be prudent for the court to step back and allow the states to assess what the effects of same-sex marriages might be.
Justice Sonia Sotomayor said at one point, “If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?”
Along similar lines, Justice Samuel Alito said “there isn't a lot of data” about the social effects of the institution of same-sex marriage.
“And it may turn out to be a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe,” Alito said to Solicitor General Donald Verrilli, who was arguing for the Obama administration, as a friend of the court, in opposition to Proposition 8.
“But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet?”
Alito added, “On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?”
Kennedy, while expressing those same concerns, also noted, “On the other hand, there is an immediate legal injury or legal – what could be a legal injury, and that's the voice of these children. There are some 40,000 children in California ... that live with same-sex parents, and they want their parents to have full recognition and full status.”
It is possible that a majority of the justices could support a ruling that applies only to California – or one that applies only to California and several other states which allow domestic partnerships that are almost identical to marriage in all but name.
During the argument, Justice Antonin Scalia was the one justice who voiced the most skepticism about the argument that limiting marriage to heterosexual couples is a violation of the Fourteenth Amendment’s Equal Protection Clause.
He said to Olson, “I'm curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Was it always unconstitutional?”
Olson replied that “when we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control” then at that point limiting marriage became unconstitutional.
Scalia then asked, “When did that happen?”
Olson responded, “There's no specific date in time. This is an evolutionary cycle.”
At another point Chief Justice John Roberts asked Olson whether those seeking to strike down Proposition 8 were interested only in the label “marriage,” since the state of California already grants same-sex couples almost all the legal protections and rights provided to heterosexual married couples.
“So it's just about the label in this case,” Roberts said.
“The label "marriage" means something,” Olson answered.
But Roberts then observed, “If you tell a child that somebody has to be their friend, I suppose you can force the child to say, ‘this is my friend,’ but it changes the definition of what it means to be a friend.”
Court observers caution that one should not read too much into the questions the justices ask and the comments they make during oral argument since they don’t necessarily reflect how any particular justice would ultimately vote in the case.
Charles Cooper, who served in the Reagan administration as assistant attorney general in charge of the Office of Legal Counsel, argued the case Tuesday for supporters of Proposition 8.
Although the justices are deciding a constitutional question, the argument is taking place as polls indicate that public opinion is shifting toward acceptance of same-sex marriage.
In recent years, nine states, either through court rulings, legislation, or ballot measures, have redefined marriage to include same-sex couples. But most states have laws or constitutional provisions that define marriage as the union of one man and one woman.
More elected officials, such as Sen. Claire McCaskill, D-Mo., Sen. Rob Portman, R-Ohio, and Sen. Jon Tester, D- Mont., are personally endorsing same-sex marriage, but it remains to be seen whether the justices will be influenced by public opinion.
In a statement Tuesday, Tester said, "no one should be able to tell a Montanan or any American who they can love and who they can marry."
Three weeks ago Tester signed an amicus brief filed by Democratic members of Congress urging the justices to overturn part of the 1996 Defense of Marriage Act.
On Wednesday the high court will hear oral arguments in that challenge to one section of the Defense of Marriage Act, which for purposes of federal regulations and benefits, defines marriage as “a legal union between one man and one woman as husband and wife.”