SCOTUS Blog is certain that Prop 8 is going down, but it looks like it may be the only thing going down. They tweeted there that “Arguments done. #scotus won’t uphold or strike down #prop8 bc Kennedy thinks it is too soon to rule on #ssm. #prop8 will stay invalidated.” They also noted that “There are not 5 votes to strike down #prop8 and recognize equal right to #ssm at this time.” It has always been a possibility that Prop 8 was going to be struck down on procedural issues, and the same holds true for the Defense of Marriage Act.
During arguments, Justice Anthony Kennedy acknowledged that there was an “immediate” legal harm to same-sex couples because they could not marry, and noted that there are thousands of children of same-sex couples who had a stake in this case.
Kennedy said to Charles Cooper, the lawyer for the anti-gay side of the argument, that “They want their parents to have full recognition and legal status. The voice of those children is considerable in this case, don’t you think?”
Justice Ruth Bader-Ginsberg also noted that Cooper was relying upon a case that came from when “same-sex intimate conduct was considered criminal” in order to defend Prop 8.
The Dynamic Duo of Olson and Boies had argued that the Supreme Court should strike down all same-sex marriage bans; however, the justices apparently spent a lot of time examining whether or not the parties defending Prop 8 had legal standing, and appear to believe that they do not. Chief Justice John Roberts even indicated that the case may not get at the central issue of whether or not same-sex couples were entitled to marriage.
Cooper, of course, relied upon the old arguments that it was an “accepted truth for almost everyone who ever lived” believed marriage was between a man and a woman. Of course, this is incorrect. It was not until the Nineteenth Century that the idea that marriage was between one man and one woman spread across the globe, and prior to that, it was limited to Europe, and before the spread of Christianity, limited to Greece and Rome.
Justice Antonin Scalia seemed to take the four discredited anti-gay studies regarding the “consequences” of same-sex couples raising children and conflate them to have the same weight as the twenty or so which show they do not and he stated that “I take no position on whether it’s harmful or not, but it’s certainly true there is no consensus to that scientific question at this point.”
It should be noted that the way that oral arguments went during this case does not mean that this is how they will end up ruling in the end. Kennedy wrestled with the idea that same-sex marriage bans such as Prop 8 should be considered as a form of gender-based discrimination. He called that a “difficult question,” but if he decides that it is, he could end up ruling in favor of striking down the bans based on established legal precedent and law which bars discrimination based on gender.