Supreme Court justices skeptical of Prop 8 law | UPDATED

WASHINGTON – The nine justices who make up the U.S. Supreme Court grilled the lead attorney for anti-gay supporters of California’s Proposition 8, displaying skepticism about upholding the law that took away marriage rights from gay and lesbian couples. At the same time, the justices seemed united against making any ruling that would have national implications.

Charles Cooper, lead attorney for ProtectMarriage.com - Yes on 8 proponents of Prop 8, was widely criticized for his legal performance at the district court and appeals court. He did not fare much better in front of the high court.

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  • Supreme Court justices skeptical of Prop 8 law | UPDATED
  • Supreme Court justices skeptical of Prop 8 law | UPDATED

Chief Justice John G. Roberts Jr. wondered whether the group Cooper represents even had legal standing to defend the law, which was declared unconstitutional in federal court and upheld on appeal to the Ninth Circuit Court of Appeals. Denying the group legal standing is the high court's escape clause from making any decision that would have national implications. And denying standing would mean that the high court would invalidate the appeals court ruling and let stand the broader ruling by District Judge Vaughn Walker. Read the federal District Court's decision HERE.

The frequent swing voter, Justice Anthony Kennedy, seemed uncomfortable with the thought of striking down Prop 8, saying it was too soon to rule on same-sex marriage, but suggested dismissing the case and allowing the lower court ruling to stand. That would bring back same-sex marriage in California.

SCOTUSblog, which follows the Supreme Court, tweeted that there are not five votes needed to strike down Prop 8 and recognize rights to marriage equality for all Americans. That appeared to be more of a prediction than evidence of how the justices will vote. Later in the morning, the blog author, Tom Goldstein, clarified his stance: "The bottom line, in my opinion, is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional."

Ted Olson argued before the high court all the reasons why Prop 8 should be struck down. And U.S. Solicitor General Donald Verrilli, on behalf of the Obama Administration and the United States, was given 10 minutes to explain why the government believes that Prop 8 is wrong because it discriminates against gays and lesbians who want to marry.

Pete Williams, who covers the high court for NBC News, reported that the justices appeared very reluctant to make any sweeping ruling for gay rights, saying that liberals and conservatives on the court seemed to be on the same page on the issue. He predicted that the high court will either throw out the case on the standing issue or make a ruling that would only apply to California residents.

Moments after the oral hearings concluded, the AFER team spoke to the media.

Attorney David Bois said there was "no attempt to defend the ban on marriage."

Attorney Ted Olson said he had no idea how the court would rule, based on the questions.

This is a breaking news story and will be updated as warranted today.

The reaction

NCLR executive director Kate Kendell:

“The passage of Proposition 8 was among the ugliest and most dispiriting moments in the history of California and our nation. Proposition 8 literally carved out same-sex couples from the full protection of the California Constitution and told them that they alone were no longer entitled to equality before the law. No other state has ever attempted such a direct attack on same-sex couples and their children, and we believe the Supreme Court will agree that Proposition 8 is a grievous offense to our Constitution’s promise of equality.”

Congressman Scott Peters (D-San Diego):

“Today and tomorrow the Supreme Court will take up Proposition 8 and the Defense of Marriage Act. I believe that every loving, committed couple deserves the freedom to marry. The ability of an individual to care for another person or to be a good parent is not determined by sexual orientation. I've been an advocate of marriage equality for more than a decade, and I will continue to fight for equal rights in Congress. I look forward to the day when we cease these archaic battles and accept that all people are created equal and deserve to be treated equally under the law.”

Rob Reiner, AFER founding board member:

“Today is a historic day for all those who believe in freedom and equality. After more than four years of working our case through victories at the federal District and Circuit courts, we finally had an opportunity today to present our arguments in support of marriage equality for gay and lesbian Americans before the highest court in the land. This case has always been about the love shared by two individuals and about the central promise from our nation’s founding that all men are created equal and are endowed with inalienable rights, including the pursuit of happiness.

“I’m proud of the powerful argument presented today by our legal team, and the courage and perseverance displayed by our plaintiffs over these last four years. I, along with millions of other Americans, look forward to the decision in June and believe the Supreme Court will come down on the side of fairness, dignity and equality.”

California Assembly Speaker John A. Pérez:

“Today’s oral arguments before the Supreme Court over the constitutionality of Proposition 8 once again made a powerful case for marriage equality. I am confident the Supreme Court will make a ruling based on justice and strike down Proposition 8 — and DOMA as well.

"This is an issue that speaks to our understanding of justice. Proposition 8 was a clear violation of the values of equality in the eyes of the law that emanates from the Constitution, and moreover, goes further in subverting the ability of the people’s elected representatives to pass laws reflecting the public’s strong — and growing — support for marriage equality. That is why I am confident the court will act in the spirit of decisions like Brown v. Board of Education, Reitman v. Mulkey and Loving v. Virginia and strike a powerful blow for justice.”

California state Sen. Ricardo Lara (D-Long Beach), who is openly gay

“The hopes and dreams of an entire community depend on a decision on whether or not same-sex marriage should be allowed in the state of California. For the sake of families, partnerships and the 40,000 children whose parents are part of the LGBT community, I hope that the Court will side with justice.

In the last few years, we have seen the public perception of same-sex marriage change towards a more positive and inclusive one. Even among the Latino community, opinion has moved in a progressive direction. In a survey conducted by the Pew Research Center in 2011, about 54 percent of Latinos indicated that they support same-sex marriage.

This June, the Supreme Court will have an opportunity to stand alongside the thousands of families that have been disenfranchised. An affirmative verdict will finally dismiss the archaic notion of separate but equal.”

John Lewis, Marriage Equality USA's legal director:

"The Justices asked very thoughtful questions today, showing that they are considering very carefully the legal questions that are critical to the lives of loving, committed same-sex couples. After hearing the oral argument, we are very hopeful that the Court will rule in favor of the freedom to marry - either by issuing a decision that renders Prop. 8 no longer enforceable, or by issuing a broader ruling that excluding loving committed same-sex couples from marriage violates the United States Constitution. These cases are ultimately about our common humanity, our common instinct to love and to have kin, and what should be our common freedom under the Constitution to marry the person we love. Listening to today's argument we are hopeful that the Justices see our common humanity and will rule in favor the freedom to marry."


Ken Williams is Editor in Chief of SDGLN. He can be reached at ken@sdgln.com, @KenSanDiego on Twitter, or by calling toll-free to 888-442-9639, ext. 713.

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