In a circuslike atmosphere of anticipation and excitement, the Supreme Court today heard arguments for the first time on the legality of gay marriage. Court watchers scrutinizing the proceedings concluded that the justices still appear reluctant to wade into the broad “uncharted waters” of the issue.
With thousands of demonstrators outside the courthouse, and lawyers and spectators packed into all available seats, justices heard a spirited 80-minute oral argument and seemed to regret that they even agreed to hear the case.
“I just wonder if this case was properly granted,” said Justice Anthony M. Kennedy, considered the swing vote. Kennedy said that the case was pulling the court into “uncharted waters.”
Even liberal darling Sonia Sotomayor expressed reservations about why the court was trying to answer questions about same-sex marriage when the nation is still so unclear about it.
“If the issue is letting the states experiment and letting the society have more time to figure out its direction,” she said, “why is taking a case now the answer?”
The question at hand is whether California voters had the right to enact Proposition 8, which overturned a state Supreme Court decision allowing same-sex marriage.
Kennedy raised the prospect of the court dismissing the case, which would leave intact the federal appeals court ruling striking down Proposition 8, meaning gay marriage could proceed in California. But that outcome would be deeply unsatisfying to gay marriage advocates because it would make no general statement about same-sex unions in other states.
Though he seemed uncomfortable with making a sweeping decision, Kennedy expressed sympathy for the children of gay and lesbian couples.
“There are some 40,000 children in California, who live with same-sex parents, and they want their parents to have full recognition and full status,” he said. “The voice of those children is important in this case.”
But later he indicated he was uncertain about the consequences for society of allowing same-sex marriage. “We have five years of information to weigh against 2,000 years of history or more,” he said, referring to the history of traditional marriage.
Justice Samuel A. Alito Jr. was thinking along the same lines when he asked: “You want us to step in and render a decision based on an assessment of the effects of this institution, which is newer than cellphones or the Internet?”
While polls indicate a majority of Americans now support gay marriage, it is officially recognized in only nine states and 30 states have constitutional amendments prohibiting it.
On Wednesday, the court will consider the related question of whether to strike down the 1996 federal Defense of Marriage Act, which denies federal benefits to married same-sex couples.
The court is expected to issue its rulings in both cases in June.
