Justices of the U.S. Supreme Court, hearing the first of two oral arguments this week on same-sex marriage, on Tuesday repeatedly raised procedural questions about a case involving the legality of California’s 2008 Proposition 8 ban on same sex marriages.
The court also took the unusual step of releasing a tape of the morning arguments shortly after the arguments concluded. (Listen to the arguments here or read the transcript here.)
Seconds into attorney Charles J. Cooper defense of the legality Prop 8, Chief Justice John Roberts interrupted, questioning Cooper's authority to argue on behalf of California voters. California’s top elected officials have declined to defend the ban.
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“Mr. Cooper, we have jurisdictional and merits issues here. Maybe it'd be best if you could begin with the standing issue,” said Justice Roberts.
That prompted Justice Ruth Bader Ginsburg to also question Cooper’s standing to argue on behalf of California voters.
“Have we ever granted standing to proponents of ballot initiatives?” she asked.
Cooper responded “No” but also pointed to the unique circumstances of the case and a California Supreme Court decision on the legality of Prop 8.
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Justice Roberts also cut off attorney Theodore Olson’s attempt to challenge the proposition.
Olson barely said, “It walls-off gays and lesbians from marriage, the most important relation in life, according to this court, thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal and not OK," before Roberts asked him to turn to the jurisdiction issue.
The high court’s extensive discussion of the procedural issues with letting Cooper defend the proposition was also raised by Justice Anthony M. Kennedy.
“I just wonder if … if the case was properly granted,” he said.
Kennedy questioned whether the Supreme Court should have taken the case.
The court’s questioning and Kennedy’s comments could buttress some commentators’ suggestions that the court is unlikely to ever get to the merits of the same-sex marriage argument in the California case and its most likely course of action could be to say the case should never have been accepted for decision by the high court.