WASHINGTON -- Supreme Court justices revealed sharp and passionately held differences Tuesday as they confronted Californias Proposition 8 ban on gay marriages.
During an 80-minute argument that was unusually long and, at times, markedly heated, the back and forth between the courts conservative and liberal wings foreshadowed difficult decisions to come. Tellingly, the frequent swing vote, Justice Anthony Kennedy, revealed some ambivalence.
In a positive sign for gay marriage supporters, Kennedy voiced strong sympathy for the approximately 40,000 California children who live with same-sex couples.
They want their parents to have full recognition and full status, Kennedy said, with evident feeling, adding that the voice of these children is important in this case.
But in a sign of how complicated the outcome might be, Kennedy and Justice Sonia Sotomayor mused aloud about whether the Supreme Court should have agreed to hear the case called Hollingsworth v. Perry at all. The court, if it chooses, has several possibilities for issuing either a very narrow decision or ducking the case altogether.
The problem with this case is that youre really asking . . . for us to go into uncharted waters, Kennedy cautioned anti-Proposition 8 lawyer Theodore Olson.
With hundreds of demonstrators amassed outside, and prominent individuals including Hollywood director Rob Reiner, Milk screenwriter Dustin Lance Black and California Lt. Gov. Gavin Newsom gathered within, the justices were debating whether the Proposition 8 same-sex marriage ban violated constitutional guarantees of equal protection. Reiner helped found the American Foundation for Equal Rights, which organized opposition to Proposition 8.
Though California Attorney General Kamala Harris, who was also present, noted that its a mistake to make a prediction about a justices state of mind based on a question, some judicial inclinations seem apparent.
There seemed to be little to no support for an Obama administration proposal that would recognize a right to gay marriage in the eight states that, like California, ban gay marriage but recognize gay civil unions. A sweeping decision covering all 50 states didnt leap out as an obvious solution, either, with Olson advising justices that they could write a narrower decision.
Chief Justice John Roberts Jr., along with fellow conservative Justices Samuel Alito and Antonin Scalia, appeared most sympathetic to the arguments of Proposition 8 supporters.
Traditional marriage has been around for thousands of years, Alito declared, while same-sex marriage is very new . . . so there isnt a lot of data about its effect. It may turn out to be a good thing; it may turn out not to be a good thing.
His voice rising, Scalia further pressed Olson to explain when did it become unconstitutional to prohibit gays from marrying?
Proposition 8, Olson argued, walls off gays and lesbians from marriage, the most important relation in life.
Attorney Charles Cooper, the former Reagan administration official arguing in support of Proposition 8, stressed that recognizing same-sex marriages would sever (marriages) abiding connection with its historic traditional procreative purposes.