U.S. Supreme Court hears argument on California’s same-sex marriage case

Reports from inside the U.S. Supreme Court on today’s argument concerning California’s ballot initiative banning same-sex marriage — Proposition 8 — reveal that the justices may be ambivalent toward ruling on the merits.

Tom Goldstein of Scotusblog.com came away from the argument with this impression:

The Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.

While Justices Sonia Sotomayor, Ruth Bader Ginsburg, Elena Kagan and Anthony Kennedy asked pointed questions and poked holes in the arguments of Prop 8’s supporters, Chief Justice John Roberts focused more on what standing the citizen’s group suing to uphold the ban had in the first instance to even bring the case, questioning what injury they could show.

Here’s more on the argument from the Wall Street Journal live blog:

Justices Sonia SotomayorAnthony Kennedy and Ruth Bader Ginsburg lead skeptical questioning of petitioners’ arguments to restore Calif Prop 8. Justice Kennedy cites what he said are 40,000 California  children who want their same-sex parents’ rights protected. “The voices of those children is important in this case, isn’t it,” Justice Kennedy asks attorney Charles Cooper, who represents a group defending the initiative that banned gay marriage in 2008.


Charles Cooper, the attorney representing Prop 8 backers, got less than a dozen words into his defense of traditional marriage before the Chief Justice John Roberts (pictured)  interrupted and asked him to address standing issues, and whether his clients even should be allowed to defend the 2008 California citizen initiative that banned gay marriage.


Charles Cooper, attorney for Prop 8 backers, appeared at times to struggle in trying to make his intended arguments because the justices kept interrupting him. Justice Sotomayor asked what “injury” was suffered by the people trying to defend Prop 8. Mr. Cooper replied that it wasn’t a matter of an injury to any persons, but rather “injury to the state.”


Justices Stephen Breyer, Elena Kagan and Ruth Bader Ginsburg dominated the questioning at the end of Mr. Cooper’s argument time.  Each of the three justices questioned the argument that same-sex marriage interferes with a traditional goal of marriage: procreation.


Shortly after Justice Ginsburg’s questions, Mr. Cooper sat down and lawyer Ted Olson, arguing for those challenging Prop 8, began his case.  The California initiative walls off marriage for gays and lesbians and labels their “cherished” relationships as second-class, he said.


Chief Justice Roberts then interrupted Mr. Olson and asked him to first address the preliminary question of whether Prop 8’s supporters have the legal right to defend the ballot initiative, given that state officials aren’t defending it.


Mr. Olson said the Prop 8 supporters didn’t have standing to defend the law, but Justices Anthony Kennedy and Samuel Alito  immediately jumped in to disagree.  Both justices appeared to believe that there were not procedural hurdles that should prevent the high court from ruling on the merits of the case.


After spending about 10 minutes on preliminary issues, Mr. Olson turned back to the main points of his argument, that the California initiative denied same-sex couples a fundamental right to marry.  Several conservative justices, led by Chief Justice Roberts, jumped in to question that argument.


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.


Chief Justice Roberts asked if the case would be different if California voters had passed Prop 8 before the California Supreme Court had ruled that same-sex couples could marry.  Mr. Olson again stated his primary argument that marriage is a fundamental right that same-sex couples should enjoy.  But he also conceded that there were narrower ways for the court to rule in his favor.


  1. Doug

    March 27, 2013 at 9:30 am

    It will be interesting to see this play out. The correlation between the US and the days of the fall of the Roman empire are becoming more apparent over the past 4 years. Reasons for the fall of Rome: Bloated government, poor leadership, declining morals, weakness in military thus giving enemies opportunity. Very similar you must admit.

  2. Frances Jenkins

    March 28, 2013 at 11:59 pm

    So, who will marry now? Is it possible for three people to marry?

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