The question of same-sex marriage went before the U.S. Supreme Court on Tuesday in the first of two oral arguments this week on separate appeals.
The opening public session was devoted to a California ban approved by voters. In a swirl of analysis after the event, the question was whether the justices would issue a sweeping decision this year on whether states can say who can or can’t get married. Or would they leave the current patchwork of state laws in place, choosing to let state legislatures and courts sort it all out?
Here are five things we learned from arguments in this case.
1. Buyer’s remorse
Many of the nine justices wondered why they were deciding whether states can or should ban same sex marriage.
Opponents of Proposition 8, the voter-approved measure prohibiting the practice, want the court to say that gay and lesbian couples have an “equal protection” right to wed.
That is the constitutional issue the court agreed to decide when it accepted an appeal from the referendum’s supporters. But a cautious court seemed to pull back in the 80-minute public session.
Justices appear hesitant as they hear arguments
“The problem with the case is that you’re really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters,” said Justice Anthony Kennedy, viewed by many as the one to watch on the closely divided court. “I just wonder if the case was properly granted” for review.
The court could easily say private citizens who put the measure before the voters in 2008 do not have “standing” or jurisdiction to now appeal the case.
That would hand gay rights supporters a narrow victory, confined only to California. It would foreclose a broader ruling that might apply to all 50 states, or even those nine states like California that have civil union laws, that stop just short of marriage for homosexual couples.