Supreme Court Hears Arguments Against California’s Same-Sex Marriage Ban, Punts


At approximately 10:15 this morning, the U.S. Supreme Court started hearing arguments on Proposition 8, the 2008 California initiative that banned same-sex marriage in the state. It was the court’s first major hearing of gay rights in 10 years, and will be followed by consideration of the Defense of Marriage Act (DOMA) tomorrow — the 1996 law that struck down federal recognition of same-sex marriage. The Prop. 8 argument was scheduled for one hour, and by 11:32 a.m., the arguments were already over. As SCOTUSblog announced on Twitter, “#scotus won’t uphold or strike down #prop8 bc Kennedy thinks it is too soon to rule on #ssm. #prop8 will stay invalidated.”

The two California couples who challenged Proposition 8 today argue that the ban violates the 14th Amendment guarantee of equal protection. They equate the moral imperative of the case to the 1967 decision in Loving v. Virginia that struck down state bans on interracial marriages. Defenders of the ban argue that the debate playing out nationwide is not a federal issue: It should be up to states themselves to decide whether or not to permit same-sex marriage. (For what’s at stake in this week’s same-sex marriage hearings, see The New York Times‘ excellent Q&A with Adam Liptak on Prop. 8 and DOMA.)

Meanwhile, the 40-year-old Roe v. Wade ruling, which established a constitutional right to abortion, hovered over the court today. Though the issues at hand are clearly very different, the idea, often discussed by Justice Ruth Bader Ginsberg, is that the court in 1973 went too far and too fast by acting at the federal level to overturn the ban on abortion. Opponents of same-sex marriage use this critique as ammunition against the court’s rejection of the ban.

As word streamed out from those inside the court during the hearing, the news took at quick turn.

SCOTUSblog first reported on Twitter at 10:39 am:
“Breaking: 1st update- #prop8 unlikely to be upheld; either struck down or #scotus won’t decide case. More in 30 mins.”

Then, at 11:08 am, came:
“Breaking: key vote Kennedy VERY uncomfortable striking down #prop8. Suggests dismissing case. Would leave in place 9th Cir pro-#ssm ruling.”

At 11:12 am we heard:
“There are not 5 votes to strike down #prop8 and recognize equal right to #ssm at this time.”

Twenty minutes later SCOTUSblog finally announced (see above) that the court wouldn’t uphold or strike down Prop. 8, because swing vote Justice Anthony Kennedy thinks it’s too soon to rule. According to Reuters, he raised concerns about the court entering “uncharted waters” on an issue that divides the states.

For now, Prop. 8 will stay invalidated, as the ruling likely won’t come until June.