The Justices Are Not Ready To Bring Marriage Equality To Alabama, And They Want Prop 8 To Go Away

There are probably five justices who object to California’s anti-gay Proposition 8 and who would prefer to see it struck down. Justice Kennedy, the conservative viewed as most likely to provide the fifth vote for equality, openly pondered whether Prop 8 violates the Constitution’s ban on gender discrimination. Kennedy at one point admitted uncertainty about whether there is sufficient evidence examining the effect of marriage equality on society, but he then pivoted to note that the nearly 40,000 children raised by gay parents in California suffer “immediate legal injury” because of Prop 8. His vote is not entirely clear, but Kennedy leaned significantly in the direction of justice.

A weak performance by Charles Cooper, the lawyer defending discrimination, probably went a long way to push Kennedy into the pro-equality camp. When Justice Sotomayor asked Cooper to identify a single example outside of marriage where discrimination against gay couples could be “rational,” Cooper responded “I cannot,” prompting Sotomayor to note that Cooper had more or less conceded that gay people meet the definition of a class entitled to heightened protection under the Constitution. Under longstanding precedent, a group which has experienced a a “‘history of purposeful unequal treatment‘ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities” enjoys enhanced protection under the Constitution’s Equal Protection Clause.

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Prop. 8 lawyers: Supreme Court justices asked 'penetrating' questions

Speaking before a bank of microphones on the Supreme Court steps moments after the argument over gay marriage in California ended, lawyers for both sides said the justices asked probing questions and did not reveal much about how they would decide the case.

Proponents in favor of legalizing gay marriage in California erupted in cheers and whistles as David Boies and Ted Olson emerged from the central door to the court. Both high-profile lawyers were part of the legal team arguing that the court should overturn the state ban.

Boies told reporters it was "amazing" that the proponents of Proposition 8, the initiative that prohibited gay marriage, made "no effort to defend the ban on gay marriage."

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