Tuesday’s historic arguments before the Supreme Court left the strong impression that a majority of the nine justices is not yet willing to establish a nationwide, constitutional right to marry for all same-sex couples, even if the court allows such marriages to occur in California or a subset of states.
The justice widely considered to be the swing vote — Anthony M. Kennedy — appeared to be searching for middle ground during the arguments in a case that could bring the court’s most important social policy decision in decades. But Kennedy also held out the possibility that the court would not rule on the merits of the case at all.
With throngs of gay marriage supporters and opponents assembled outside the courthouse — and swarms of media and spectators within — the justices spent 80 minutes evaluating whether they should effectively legalize same-sex marriages around the country or take any of a number of legal steps at their disposal that would fall short of that sweeping outcome.
The attorney arguing in favor of supporters of traditional marriage, Charles J. Cooper, attempted to persuade a majority of the high court that California voters acted constitutionally when they approved a 2008 state ballot initiative, known as Proposition 8, banning gay couples from marrying.
Cooper said the voters’ decision not only represented the will of the people, but furthered a legitimate governmental interest because it promoted procreation — a process that is biologically impossible for same-sex couples.
In an important and potentially telling exchange, Kennedy expressed skepticism about the argument that child-rearing would be harmed as a result of legalized gay weddings. He cited a legal brief finding that about 40,000 children of same-sex couples in California support full marriage rights for their parents.
“The voice of those children is important in this case, don’t you think?” Kennedy said.
With that argument, Kennedy joined the members of the court’s liberal wing in aggressively questioning the notion that legalization of gay unions would harm procreation or, for that matter, any governmental interest. The court’s conservatives largely remained silent on that point.
Justice Stephen G. Breyer said that if procreation is the primary governmental interest in banning same-sex unions, as Cooper contended, then unions between sterile heterosexual couples also could be banned.
Justice Elena Kagan latched onto Breyer’s theme and said that unions between couples over 55 years of age — who might no longer be fertile — also might be prohibited under Cooper’s rationale. “I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage,” she said, prompting laughter in the courtroom.