Constitution Daily

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Supreme Court seems uneasy after Prop 8 testimony

March 26, 2013 by NCC Staff


Early reports about today’s Supreme Court hearing on California’s Proposition 8 indicate a potential June ruling may let a lower-court decision stand in the same-sex marriage case.


samesex0531twoiconsThe influential SCOTUSblog says that Associate Justice Anthony Kennedy seemed “very uncomfortable” during the hearings about striking down Proposition 8 in its entirety.


Proposition 8 was a measure passed by California voters that barred same-sex marriages in the state. A higher court later overturned Proposition 8 as unconstitutional, as did a lower district court.


Kennedy is seen as the swing vote on the case.


SCOTUSblog publisher Tom Goldstein said on the site’s Twitter account that Kennedy’s behavior indicated the court may dismiss the case entirely, leaving in place the lower district court ruling that overturned Proposition 8.


“Arguments done. #scotus won’t uphold or strike down #prop8 [because] Kennedy thinks it is too soon to rule on #ssm. #prop8 will stay invalidated,” Goldstein said on SCOTUSblog’s Twitter account.


Goldstein later explained his logic in a blog post.


“Several justices seriously doubt whether the petitioners defending Proposition 8 have ‘standing’ to appeal the district court ruling invalidating the measure. These likely include not only more liberal members but also the Chief Justice. If standing is lacking, the court would vacate the Ninth Circuit’s decision,” he said.


Link: Lyle Denniston explains the Prop 8 and DOMA cases


CNN’s Jeffrey Toobin was also in the courtroom and indicated that the conservative justices on the bench weren’t leaning toward a Supreme Court ruling that would directly strike down or uphold the law.


“Kennedy suggested the issue was brought prematurely before the court,” Toobin said on But Toobin didn’t make a prediction about the court’s ultimate ruling.


The final ruling won’t come until late June, and as court watchers saw last year, a Supreme Court ruling is never final until it is delivered in court.


Today the court was hearing oral arguments in the case of Hollingsworth v. Perry.


One big issue in the case has been the legal standing of Proposition 8’s supporters to sue.


Two high-profile attorneys representing Proposition 8’s opponents, David Boies and Ted Olson, believe that Proposition 8’s supporters don’t have legal footing to sue because they won’t be personally hurt if California allows same-sex marriages.


Proposition 8’s supporters think they have legal standing under California’s laws. Former California governor Arnold Schwarzenegger and his successor, Governor Jerry Brown, turned down defending the state law.


On Wednesday, the Supreme Court will hear arguments in another same-sex marriage case about the Defense of Marriage Act, which restricts federal marriage benefits to same-sex couples.


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Supreme Court seems uneasy after Prop 8 testimony


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