Tony Mauro, our U.S. Supreme Court correspondent, has just emerged from arguments over the constitutionality of California’s Proposition 8, which banned same-sex marriage in the state. He spoke with NLJ Editor in Chief David Brown about today's action:
I think they’re headed for a fairly limited decision possibly confined to California. That could mean they uphold Prop 8, but the state would be free to have another initiative. (Justice Samuel Alito pointed out that they have a lot of initiatives in California)
If they strike down Prop 8, they could also apply that decision only to California. There are some justices (Sonia Sotomayor, Ruth Bader Ginsburg, Elena Kagan) who appear to want to go for a broader decision. Justice Anthony Kennedy seemed on the fence. Justice Alito and Chief Justice John Roberts, even Justice Stephen Breyer possibly, may be looking for a more limited decision.
There was a lot of dissatisfaction with the Obama administration’s proposed resolution of the case that would require the states that allow civil unions to take the further step of allowing same-sex marriages.
There was intense interest in the issue of standing, and that seemed to come from most of the justices. The chief justice interrupted the lawyers on both sides as they started arguments on merits, saying “before you get to the merits, talk to us about standing.” The Court could, it still seems, use standing as the basis for a decision.
The only justice who seemed totally opposed to marriage and was very active in questioning was Justice Antonin Scalia. Justices Kagan and Ginsburg were most active on the pro side.
Justice Kennedy definitely, during the first half, had a lot of concern about Prop 8, particularly the impact on the children of same-sex couples. In the second half of arguments, however, he seemed cautious about the rationale of the Ninth Circuit ruling, saying the court used an odd rationale for its decision, he said.
We'll have a full story on the arguments later in the day.