As word streams out from a confusing day inside the Supreme Court hearing on California's ban on gay marriage, the tea leaves pretty much read that the Proposition 8 ban will likely not be struck down by justices — and that the key justice, Anthony Kennedy, may push for the Court to dismiss Prop. 8 or hand it back to the lower courts of California, wary of "uncharted waters" in potentially redefining marriage in America. Ladies and gentlemen — and ladies and ladies, and gentlemen and gentlemen — the Supremes aren't ready to rule yet.
This whole thing might end up being one big tease. The ruling itself likely won't come until June, of course, and a lot of this is very speculative. Longtime Supreme Court attorney Ted Olson, who is representing the pro-gay marriage side in the case, said after the arguments on the raucous footsteps of the Court that "I have no idea" which way the justices are leaning. Even CNN's Jeffrey Toobin, reminded on air of his "train wreck" of a call guessing on the Obamacare hearings at the Court, said "I am now not in the business of making predictions." Veteran Court reporter Pete Williams of NBC News was more blunt: "It's quite obvious the Supreme Court is not prepared to issue any kind of sweeping ruling about gay rights," he said. ""No member of the court seemed to be very interested in that." The transcript and audio were released just before 1 p.m. Eastern (and here's an annotated version of all that), but here's what we know from reporters and experts on the inside — and, by way of them, from the justices themselves:
Here's what we got first, from the ultimate tea-leaf readers at SCOTUSblog:
That seemed like gigantic news, but then came this:
And one more piece of speculation:
So what came in between that led to differing conclusions from the experts inside? Well, Adam Liptak of The New York Times explained that this would be a complex hour with different kinds of questions:
Charles J. Cooper, a lawyer for the proponents of Proposition 8, will have half an hour. He will probably get questions about his clients’ standing and the reasons offered to support the ban on same-sex marriage. Mr. Olson, representing the couples who are challenging the ban, has 20 minutes. He will most likely be asked why the issue should be withdrawn from public debate and a fast-moving political process. Mr. Verrilli will have 10 minutes, and he will probably be asked about shifts in the Obama administration’s positions.
Here's how that played out, justice by justice:
Justice Roberts and "standing." It sounds like Roberts may have raised questions about whether or not private citizens can defend public law. California's Supreme Court and Ninth Circuit both said yes to this question — and it is unusual for federal courts to allow this to happen. This might be why there's growing speculation that the Court might not decide the case: "I don't think we've ever allowed anything like that," Roberts said, according to Reuters. His comments came at the midway point of the arguments, and if the clients lack that right, the Supreme Court may not reach the central question of gay marriage rights.
Justice Kennedy is "uncomfortable." Kennedy is your apparent swing vote, and he did not disappoint. Here's why there's chatter that this case will be dismissed:
JUSTICE KENNEDY: I just wonder if the case was properly granted.— Jan Crawford (@JanCBS) March 26, 2013
That quote might indicate that Kennedy plans on not giving either side the fifth vote needed—essentially punting the decision. As the SCOTUS Blog's Tom Goldstein points out, this is a good scenario for marriage equality advocates, since it would defer to decisions from California's lower courts:
Here is Goldstein's first scenario:
First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing. That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8.
And the second:
Second, the Court may dismiss the case because of an inability to reach a majority. Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him. Others on the left may agree. That ruling would leave in place the Ninth Circuit’s decision.
But Kennedy also weighed on the impact that this case would have. The swing Justice siad that there are "some 40,000 children in California that live with same-sex parents ... They want their parents to have full recognition and full status. The voice of those children is important." But Kennedy also mentioned that he has some concerns about the Court taking up same-sex marriage:
Gay marriage supporters won't like that "cliff" idea, especially coming from the man seen as the most important decider in the Prop 8 and DOMA cases.
Justice Sotomayor was not offered a rational explanation for treating gay couples differently. She asked for one, but did not get an answer from Prop. 8's defense. From The Wall Street Journal's Evan Perez:
Justice Sotomayor asked Mr. Cooper whether the state could discriminate against gays by denying jobs or benefits. She asked if there is any "rational basis" for the state to treat homosexual couples differently in those cases. Mr. Cooper replied, "I do not have anything to offer you."
Justice Ginsburg brought up interracial marriage. Interracial marriage is sort of a parallel and argument you hear when same-sex marriage is being discussed in that many states did not allow people of difference races to marry one another. That wasn't the main point she was making when she cited the Court's Loving v. Virginia decision, which struck down laws prohibiting interracial marriage. The Wall Street Journal's Jess Bravin reports:
Sensing the court’s reluctance to impose same-sex marriage nationwide, Mr. Cooper tries to raise the stakes – “It’s impossible” to limit the ruling to California, he says.
Justice Ginsburg disagrees. Loving v. Virginia, the 1967 interracial marriage case that hangs over these arguments, didn’t come as a bolt from the blue, she says. In 1964, the court struck down a Florida law making it a crime for men and women of different races to live together, without, as it said then, “expressing any views about the State’s prohibition of interracial marriage.”
She seems to be suggesting that Proposition 8 could be struck down without changing marriage laws elsewhere.
Justice Breyer asked about couples who don't want children. Riffing off the argument that of procreation being the primary goal of marriage, Breyer asked about opposite-sex couples who marry and cannot have children. Which prompted Justice Kagan's questions.
Justice Kagan asked about old people (and got some laughs). ProtectMarriage's central argument in preventing same-sex couples from marrying centers on the idea of procreation. Which is why Kagan asked about laws being passed that bars older couples from marrying—since older couples might not be able to have children:
Justice Alito is scared of the future. The key quote from Alito is the one in which he said that same-sex marriage could be terrible and is "younger" than Internet and cell phones. On the basis of that premise, Alito made the point that approving same-sex marriage now might spell bad consequences, since we can't "see the future." However, won't same-sex marriage always be younger than cell phones or the Internet? If you're going to draw a comparison between the future and its wonderful tools like iPhones and the Internet, that might undermine your point about same-sex marriage being terrible.
ALITO: asked about "need to be cautious" .."Same sex marriage is very new...newer than cell phones or the internet."— Jan Crawford (@JanCBS) March 26, 2013
Justice Scalia was a troll. He has made his position on gay marriage very clear. Today's questions were more or less some morning theater and an opportunity to see if Scalia would make any jokes, any unsavory comparisons, or put lawyers in uncomfortable positions. He tried the latter with Olson, who fought back:
Justice Antonin Scalia asked Olson when exactly it became unconstitutional to bar gays and lesbians from marrying. Was it 1791? 1868? Mr. Olson responded with a question of his own: When did it become unconstitutional to ban interracial marriage?
Don’t try to answer my question with your own question, Justice Scalia responded. Mr. Olson then said he could give no specific date on which a ban on gay marriage became unconstitutional. But courts, he said, have never required that kind of precision.
The Justice, according to Mother Jones reporter Adam Serwer, apparently made a (intentional?) mistake in questioning, too:
Scalia, incorrectly, to SG Verrilli: You are asking us to impose [same sex marriage] on the whole country— AdamSerwer (@AdamSerwer) March 26, 2013
And Clarence Thomas didn't say anything. Again.