SCOTUS: Gay Marriage Argument Analysis
Supreme Court Justice Anthony M. Kennedy, in an unusually candid process of elimination of options in public, on Tuesday worked his way through the ways for dealing with California’s Proposition 8 ban on same-sex marriage and seemed strongly tempted to just take a pass. He appeared to be troubled about the Court entering “uncharted waters,” on the core issue of who may marry, but at the same time, he also did not look comfortable with any of the other, more limited options. So he openly wondered why the Court had agreed even to hear this case.
Focusing on Kennedy, although that is often the closest one can come to anticipating outcomes on a divided Court, was an even more reliable approach this time given that the other eight Justices were so clearly split: four friendly to same-sex marriage as a constitutional matter, three hostile to it — and, in the end, likely to attract a fourth to that view.
If the Justices, in the initial vote they will take on this case in private later this week, do not find themselves with a majority on any of the issues they canvassed, then they might well be looking for a way out. One way would be to find that the proponents of Proposition 8 did not have a legal right to be in court to defend it, but even that was a hotly disputed issue on the bench. The other way out was directly suggested by Kennedy, and pursued by him in more than a fleeting way: dismiss this case as one that should not have been accepted. A decision like that, though, could take weeks or months to reach.
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Listen to the Audio Arguments on Gay Marriage by the Supreme Court Justices