Adam Liptak: Justices Say Time May Be Wrong for Gay Marriage Case

Justices Say Time May Be Wrong for Gay Marriage Case
by Adam Liptak
The New York Times

As the Supreme Court on Tuesday weighed the momentous question of whether gay and lesbian couples have a constitutional right to marry, six justices questioned whether the case, arising from a California ban on same-sex marriages, was properly before the court and indicated that they might vote to dismiss it.

“I just wonder if the case was properly granted,” said Justice Anthony M. Kennedy, who probably holds the decisive vote, in a comment that showed a court torn over whether this was the right time and right case for a decision on a fast-moving social issue.

Justice Sonia Sotomayor seemed to share that concern. “If the issue is letting the states experiment and letting the society have more time to figure out its direction,” she said, “why is taking a case now the answer?”

Those justices and others seemed driven to that conclusion by an argument in which no attractive middle ground emerged on the substance of the question before them: whether voters in California were entitled to enact Proposition 8, which overturned a State Supreme Court decision allowing same-sex marriage.

Justices who appeared sympathetic to same-sex marriage indicated that there was no principled way to issue a ruling that could apply only in California or only in the nine states that have robust civil union or domestic partnership laws but withhold the word “marriage.”

That appeared to leave the court with an all-or-nothing choice on the merits: either a ruling that would require same-sex marriage in all 50 states or one that would say that all states may do as they wish. Neither choice seemed attractive to a majority of the justices.

Five members of the court asked questions indicating that they might vote to dismiss the case on the threshold issue that supporters of Proposition 8 lacked standing to appeal a lower court’s decision. Chief Justice John G. Roberts Jr., whose questions on the merits indicated discomfort with requiring states to allow same-sex marriage, seemed particularly interested in the standing issue.

Justice Kennedy seemed more open to the possibility that the proponents of Proposition 8 had standing, but he twice asked lawyers why the court should not dismiss the case outright. When the justices have second thoughts about agreeing to hear a case, they sometimes dismiss it as “improvidently granted.”

Questions from the justices do not always reliably forecast votes, of course, and many of the justices also indicated their views of the central issue presented in the case.

When Justice Kennedy turned to the merits of the case, he voiced sympathy for the children of gay couples. “There are some 40,000 children in California,” he said, who “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.”

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