Tuesday's arguments over California's Proposition 8 may end up with the high court limiting their ruling to a technical question rather than substantive issues.
March 27, 2013

Synched transcript and audio, courtesy of the Oyez Project

Tuesday morning at the Supreme Court looked a lot like it did a year ago when the court heard arguments on the Affordable Care Act, except that people outside seemed to be in much higher spirits. It was the day for the court to hear arguments on whether California's Proposition 8 passed in 2008 violates the constitution.

John Aravosis was there:

It was a powerful morning – almost a jovial atmosphere outside the Supreme Court. I got there around 8:45am, the arguments began at 10am. But by 8:45am it was already packed outside – wall to wall people, and all, 100%, on our side. The bad guys were NOWHERE to be found. It was a huge tactical mistake on their part – they organized elsewhere and decided to show up at 10am AFTER much of the media had already taken its photos and left. Any freshman in college PR major could tell you that the media wants photos in front of the Supreme Court. And the only people in front of the Supreme Court were gay people and our allies. Oh well.

Before the court decides the question of Prop 8 itself, they first have to decide if the Proposition 8 proponents even have standing to bring the case before the court. Because California's Attorney General declined to join the action and argue for Proposition 8's constitutionality, the proponents of the original ballot initiative stepped in to do it.

From what I heard, it appeared that the court was leaning toward deciding the proponents did not have standing, which would allow them a way out of making a decision on the merits, while allowing the lower court's opinion to stand.

Chris Geidner has a detailed report here that does a great job of summarizing all of the high points. For me, the most significant moment in the entire hearing was when Justice Kennedy, widely considered to be the swing vote, jumped in with this:

Justice Anthony Kennedy, however, shot back by asking Cooper whether the "voice of the[ ] children" of same-sex couples "is important in this case," to which Cooper responded that there is "no data" on whether children of same-sex domestic partners face disadvantages from those of married same-sex couples.

That was how Chris phrased Kennedy's question. It was actually more powerful than that. Here's the quote from the transcript:

Justice Kennedy: I -- I think there's -- there's substantial -- that there's substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more.

On the other hand, there is an immediate legal injury or legal -- what could be a legal injury, and that's the voice of these children. There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and status. The voice of those children is important in this case, don't you think?

Imagine, someone who is actually thinking of the children!

Oral arguments are a lousy indicator of final outcomes. But if I had to bet, I'd probably place a small bet on the standing issues giving the court a way not to rule on the substance.

Today's arguments are about the constitutionality of DOMA. If the court rules DOMA unconstitutional but leaves the Prop8 decision in the lower court, they will have split the baby, leaving the question of same sex marriage to the states, but with the risk that narrow definitions of marriage may violate the 14th amendment as the lower court ruled with regard to Prop 8.

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