While Kennedy appeared skeptical of the procreation argument advanced by Cooper, he also made clear that he is highly uncomfortable with the most sweeping of the arguments made by Theodore B. Olson, the attorney representing two same-sex California couples in the case.
Olson, a veteran Supreme Court advocate, argued that the Constitution’s Equal Protection Clause should require same-sex marriage to be legalized not just in California, but around the country — including in the roughly three dozen states that have constitutionally or statutorily banned such unions.
Kennedy indicated that would be a step too far for him.
“The problem with the case is that you’re really asking ... for us to go into unchartered water,” he said in remarks echoed by the court’s conservative justices during other parts of the arguments.
Justice Samuel A. Alito Jr. said if the court went as far as Olson suggested, it would be legalizing a practice that is “newer than cellphones or the Internet.”
Justice Antonin Scalia said he has not made up his mind one way or the other about the constitutionality of gay marriage, but suggested he is reluctant “to impose this on the whole country.”
Less Sweeping Options
If the pivotal Kennedy appeared to be searching for a middle ground, one potential option would be a separate legal path that the justices debated Tuesday: finding that supporters of traditional marriage lack the standing to bring their appeal in the first place. In the California case, Hollingsworth v. Perry, the petitioners defended Proposition 8 because state officials would not do so.
Though many legal observers have considered that an outside option — because the court could have simply agreed not to take up the California case at all — the justices spent about a quarter of the argument debating the issue. All but two, Alito and Clarence Thomas, questioned Cooper about whether his clients had a right to be at the Supreme Court at all, and Kennedy and other justices may decide that they do not. Kennedy pointedly called it a “substantial question.”
If the court agrees that the petitioners have no standing, same-sex couples would likely have the right to marry in California immediately, but the decision would be limited to that state. A high court precedent on the constitutional merits of same-sex marriage would be put off for another day.
Another potential outcome — one supported by the Obama administration — would be for the court to legalize same-sex unions only in the handful of states, such as California, that already provide same-sex couples with marital benefits but do not go so far as to call those unions “marriages.”
Solicitor General Donald B. Verrilli Jr. argued in favor of that option, which was taken by the 9th U.S. Circuit Court of Appeals in San Francisco, but he faced considerable skepticism from liberal and conservative justices alike.
Chief Justice John G. Roberts Jr. accused the administration of putting forth an “internally inconsistent” position. Alito pointedly asked Olson if he was “seriously arguing” that the administration’s position would be different if the case had come from a state that currently offers no marriage benefits to gay couples, such as Utah, as opposed to one that offers nearly all benefits, such as California.
“I don’t think you can have it both ways,” Alito said.