Justice Anthony Kennedy, second from left, often is the pivotal swing vote on the Supreme Court. Chief Justice John Roberts and Justices Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan attend President Barack Obama’s State of the Union address.
WASHINGTON — After Tuesday’s Supreme Court hearing on California’s Proposition 8 marriage amendment, the justices appear to be split and, as expected, the key vote will likely come down to Justice Anthony Kennedy.
Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito suggested that they don’t agree with the arguments that Proposition 8 is unconstitutional — in which they are likely joined by the silent-as-usual Justice Clarence Thomas. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, meanwhile, all signaled discomfort with the defense of Proposition 8. So, all eyes have turned to Kennedy, often the pivotal swing vote on the Supreme Court.
True to form, the swing vote has sent mixed messages.
The first issue the justices faced was standing, a constitutional requirement that the person bringing an appeal can show a particular interest in the outcome of the case. On that front, Kennedy initially suggested that he could see the proponents of Proposition 8 having standing to bring the appeal. But, then later he said there was a “substantial question” about standing.
On the main question of whether same-sex couples have a constitutional right to marry, Kennedy suggested he thought that such a ruling would be a bit ambitious, telling Ted Olson, the lawyer for the same-sex couples who brought the lawsuit, “[Y]ou’re really asking … for us to go into uncharted waters, and you can play with that metaphor, there’s a wonderful destination [or] it is a cliff.”
At the same time, Kennedy made clear that he saw potentially harmful effects from not allowing same-sex couples to marry, telling Charles Cooper, the lawyer for the proponents, at one point:
“[T]here is an immediate legal injury or legal — what could be a legal injury, and that’s the voice of these children. There are some 40,000 children in California, according to the … [b]rief [of the same-sex couples challenging Proposition 8], that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?”
When the justices meet later this week to discuss the case, Kennedy’s eight colleagues will find out what he is thinking.
For the rest of the country, the wait could last until the end of June, when the court’s final opinions of the term are handed down.
Until then, here is everything Kennedy said at Tuesday’s arguments.
1. When questioning Cooper, Kennedy suggested the proponents are uniquely situated, which could be part of a holding that they have standing.
2. Kennedy also raised the issue of whether not allowing same-sex couples to marry was an issue of sex discrimination.
3. While agreeing that allowing same-sex couples to marry was a new development, Kennedy drew stark attention to the children of same-sex couples and their interest in having legally married parents.
4. When Ted Olson got up, Kennedy raised another issue that could lead a justice to find that the proponents have standing.
5. Kennedy did not appear to agree with the appeals court ruling, which was based on one of his earlier opinions, although he appeared to be focused on a broader issue.
Kennedy, like several other justices, was skeptical of the idea it is unconstitutional for a state to grant same-sex couples most of the rights of marriage but not marriage itself.
6. Kennedy later closed out his questioning to Olson with a long back-and-forth exchange about the scope of any possible ruling and the historical precedent for it, while also suggesting that maybe the court should not even have taken the case.
7. During the rebuttal time given to Cooper, Kennedy asked about the issue of whether the court should have accepted review of the case.
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