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.