Supreme Court justices spar over gay marriage case

Supreme Court justices expressed skepticism Tuesday that the proponents of California's gay marriage ban have the legal right to defend the proposition in court. Nearly all of the justices closely questioned the attorneys in the case over the procedural legal issue, called standing, suggesting they may be poised to throw the case out without significantly addressing the broader issue of whether same-sex couples have a fundamental right to marry.

Justice Anthony Kennedy, the court's conservative-leaning swing vote and the author of two major decisions in favor of gay rights, appeared to be on the fence in the controversial case. Early in the arguments, he suggested that the estimated 40,000 children being raised by same-sex couples in California might be harmed by their parents' inability to wed. "They want their parents to have full recognition and full status," Kennedy said, saying he worries about the "voice of the children" in the case.
Later in the oral arguments, however, Kennedy said he wondered whether the case should have been granted at all, again mentioning the standing issue. "You're really asking for us to go into uncharted waters," Kennedy said, adding that there's a "substantial question" over whether Prop 8's defenders have the standing to bring suit.
The standing issue has dogged supporters of Prop 8 since former Gov. Arnold Schwarzenegger and California's attorney general declined to appeal a lower court's decision striking down the ban. A coalition of people who helped get Prop 8 put on the ballot in the first place stepped up to defend the ban without financial help from the state. The group must prove they would experience a direct injury if Prop 8 is struck down in order to have standing to appeal.
The California state Supreme Court ruled that the coalition had standing to pursue the case, but justices from both the liberal and conservative wings of the court appeared skeptical of this ruling. Justice Sonia Sotomayor asked whether it was appropriate for supporters of a ballot initiative to defend it in court. Chief Justice John Roberts noted that the court had never "allowed anything like it" in the past.
The court could decide the case in many different ways. They could uphold Prop 8 as a valid exercise of state power. They could strike down Prop 8 for mainly procedural reasons, deciding that the Prop 8 supporters do not have the legal standing to appeal the lower courts' decisions. They could also strike down Prop 8 in a sweeping way that would invalidate other state gay marriage bans.