SAN FRANCISCO -- Gay marriage foes expressed confidence that the U.S. Supreme Court could uphold the state's ban on same-sex unions after hearing arguments on the law Tuesday.
"I think we are going to win this case," Andy Pugno, lawyer for Proposition 8 campaign. "We definitely represented the winning case today and the justices asked good thoughtful questions and we were able to say everything that we wanted to get in front of the court today."
Pugno, counsel for Protectmarriage.com, said he was unimpressed by the arguments in favor of lifting the voter-approved ban on same-sex marriages in California.
"What makes me optimistic is the court's questions showed that the court was well tuned in to what exactly our arguments are, and also exposed the weakness of many of the arguments of the challengers of Prop. 8," he said.
"One justice noted that this is something newer than cellphones and the Internet and questioned whether that is something the court should be rushing to decide," he added.
Pugno described the Supreme Court proceedings as "the best hearing that we have had throughout the entire process of this case in nearly four years .... This is the first time we feel we have a fair shot in front of a fair tribunal."
The Times' David G. Savage reported that the justices sounded closely split, but Justice Anthony M. Kennedy suggested during oral arguments that the court should strike down the California ban without ruling broadly on the issue of same-sex marriage.
Twice Kennedy questioned why the court had even voted to hear the California case. “I wonder if this case was properly granted,” he said at one point.
His comments suggested that the court’s four most conservative justices voted to hear the California case. Had the justices turned down the appeal, as Kennedy suggested, Proposition 8 would have been struck down as ruled by by the U.S. 9th Circuit Court of Appeals.
Minutes after the conclusion of arguments, Constitutional Accountability Center Vice President Judith E. Schaeffer released the following statement:
“When pressed by the justices, the lawyer defending Proposition 8 could not come up with any legitimate reason for excluding gay and lesbian couples from the freedom to marry. The justices, while uncomfortable with Proposition 8, seemed hesitant to rule on the merits, but as Justice Kennedy noted, there was concern about branding the families of nearly 40,000 children in California as second-class.
"One important question Justice [Antonin] Scalia asked former Bush Solicitor General Theodore Olson, who defended marriage equality, was when it became unconstitutional to deny gay and lesbian couples the right to marry. The answer is 1868, when the American people added the 14th Amendment's universal guarantee of equality to the Constitution.”
[For the record, 10:30 a.m. March 26: An earlier version of this post incorrectly referred to protectmarriage.com as protectmarriage.org.]