WASHINGTON, DC — There are probably five justices who object to California’s anti-gay Proposition 8 and who would prefer to see it struck down. Justice Kennedy, the conservative viewed as most likely to provide the fifth vote for equality, openly pondered whether Prop 8 violates the Constitution’s ban on gender discrimination. Kennedy at one point admitted uncertainty about whether there is sufficient evidence examining the effect of marriage equality on society, but he then pivoted to note that the nearly 40,000 children raised by gay parents in California suffer “immediate legal injury” because of Prop 8. His vote is not entirely clear, but Kennedy leaned significantly in the direction of justice.
A weak performance by Charles Cooper, the lawyer defending discrimination, probably went a long way to push Kennedy into the pro-equality camp. When Justice Sotomayor asked Cooper to identify a single example outside of marriage where discrimination against gay couples could be “rational,” Cooper responded “I cannot,” prompting Sotomayor to note that Cooper had more or less conceded that gay people meet the definition of a class entitled to heightened protection under the Constitution. Under longstanding precedent, a group which has experienced a “‘history of purposeful unequal treatment‘ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities” enjoys enhanced protection under the Constitution’s Equal Protection Clause.
Similarly, when Cooper argued that same-sex marriages could somehow undermine opposite-sex marriages, Kagan asked him to explain the “cause and effect” behind this point. When Cooper fumbled the question, Kennedy pounced, asking if Cooper was “conceding the point” that same-sex couples are not a threat to other people’s marriages. Cooper was left to meekly assert that it is “impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be.”
Yet the question of whether California’s same-sex couples enjoy the blessings of liberty was rapidly eclipsed by a different, unspoken question — whether gay couples in Alabama also enjoy those rights. Three justices, Roberts, Scalia and Alito asked hostile questions to the attorneys supporting equality and appear very unlikely to vote against Prop 8. Similarly, while Thomas was characteristically silent, no one expects him to break from his past, anti-equality opinions in gay rights cases. Of the remaining five, at least three spent much of the argument grasping for ways to limit the scope of a decision striking down Prop 8.
Sotomayor, at one point, asked pro-equality attorney Ted Olson whether the Court’s decision could be limited to just California. Kennedy worried about the “uncharted waters” facing the Court if it struck down marriage discrimination nationwide. Justice Ginsburg, who famously accused Roe v. Wade of moving “too far, too fast,” alluded to the fact that racial marriage discrimination ended in two stages — first the Court struck down bans on interracial cohabitation, then it struck down bans on interracial marriage. The clear implication was that the Court could be similarly incremental here.
Yet a means of killing Prop 8 without also ordering Alabama to comply with the Constitution escaped the justices. Kennedy was openly dismissive of the Ninth Circuit’s rationale for limiting its decision striking Prop 8 to California. When Solicitor General Don Verrilli called for the Court to upgrade civil union states into full marriage equality states but leave the Alabama question for another day, most of the bench was skeptical. Ginsburg wondered why only states that have made significant progress towards equality are required to go all in. Kagan questioned how the facts supporting marriage discrimination could be different in another state. When Justice Breyer asked Verrilli which arguments could possibly support marriage equality in California but not Alabama, Verrilli was only able to respond “caution.”
By the end of the argument, a majority of the Court seemed to believe that they shouldn’t even be hearing this case in the first place. At least five justices — Roberts, Ginsburg, Breyer, Sotomayor and Kagan — at one point asked skeptical questions about whether the Court has jurisdiction to hear this case, a result that would potentially raise difficult legal questions about whether Prop 8 is still the law in California or not. Justice Kennedy repeatedly asked about another possibility — the Court could dismiss the case as “improvidently granted” — essentially reversing the Court’s prior decision to hear the case and leaving the Ninth Circuit’s decision to strike Prop 8 in effect. Sotomayor asked Cooper “[i]f the issue is letting the States experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?”
In other words, the most likely answer to the question of whether Prop 8 is unconstitutional is that the Supreme Court will not answer this question at all. Too many of the five justices who appeared open to marriage equality posed too many questions about whether now is the time to bring equality to the nation as a whole, and they did not appear satisfied with any of the theories offered to limit their decision to just some of the states.