WASHINGTON — The Supreme Court justices sounded closely split on gay marriage Tuesday, but Justice Anthony M. Kennedy suggested the court should strike down California’s ban on same-sex marriage without ruling broadly on the issue.
Twice during the oral argument, Kennedy questioned why the court had voted to hear the California case. “I wonder if this case was properly granted,” Kennedy 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 on the grounds of a narrow ruling by the 9th U.S. Circuit Court of Appeals.
Kennedy is likely to have the support of the court’s four liberal justices when they meet later this week to decide the California case. They could decide to write an opinion that strikes down the California ballot measure on the grounds that it denies same-sex couples a right to marry. Or they could vote to dismiss the appeal, which also would have the effect of voiding Prop. 8.
On several occasions, Kennedy and other justices said they were wary of ruling broadly in a way that would make gay marriage legal nationwide.
But at one point, Kennedy said upholding California’s ban on same-sex marriage would cause real harm. He said there were more than 40,000 children being raised by same-sex couples in California.
“It’s the voice of those children” that should be heard, he said. “They want their parents to have the full recognition” of marriage, he added.
But if Kennedy made clear his sympathy to gay marriage in California, Chief Justice John G. Roberts and conservative colleagues were just as clear in saying they opposed the idea. Marriage has been limited to a man and a woman since “time immemorial,” Roberts said.
Justices Antonin Scalia said he saw no grounds for saying gay marriage is a constitutional right, and Justice Samuel Alito said the court should move cautiously before redefining marriage.
The chief justice pressed the lawyers on the procedural issues in the case. Roberts and Justice Ruth Bader Ginsburg questioned whether the sponsors of Prop. 8 have legal standing to defend it in the Supreme Court.
“Have we ever granted standing to the proponents of a ballot measure?,” Ginsburg asked.
Her question highlighted the possibility that the court could dismiss the Prop. 8 case on procedural grounds.
But Justice Kennedy, a California native, said California law about ballot measures gives a special responsibility to the sponsors of ballot measures. He said they can represent the people of the state when its officials refuse to defend a measure approved by the voters.
This exchange suggested Kennedy was not looking for a way for the court to duck a ruling on California’s ban on gay marriage.
Justice Elena Kagan drew laughter in the courtroom when she pressed attorney Charles Cooper to explain why the government should deny marriage to same-sex couples. Cooper, who represents the sponsor of Prop. 8, said marriage was about “responsible procreation.”
That cannot be the only reason for marriage, Kagan said. What about two 55-years old—a man and a woman—who decide to marry?
Cooper pressed ahead, arguing that the man could still be fertile.
Kagan countered that it was not likely that couple would produce many children.
“Lots of people who get married can’t have children,” added Justice Stephen G. Breyer.
[Update, 9:30: a.m. PST March 26: This post has been updated to include additional exchanges from the courtroom.]