NBCNews.com is reporting that none of the justices seemed anxious to redefine the institution of marriage during Tuesday's hearings on California's Proposition 8, a state constitutional amendment that same-sex marriage proponents claim is in violation of the Equal Protection Clause in the U.S. Constitution.
Most of the justices seemed to question whether the case should have been brought before them at all because the plaintiffs, those who support the amendment, might actually lack legal standing to bring the suit.
They also questioned many of the arguments raised in favor of overturning the amendment and allow same-sex couples to marry.
For instance, Justice Samuel Alito commented on the lack of data about the social effects of the institution of same-sex marriage.
“And it may turn out to be a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe . . . . But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet?”
Justice Antonin Scalia was very skeptical of the argument that excluding same-sex couples from marriage was unconstitutional.
“I'm curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Was it always unconstitutional?" Scalia asked of Theodore Olson, the attorney representing those who are opposed to the California ban on homosexual marriage.
Olson replied that “when we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control” then at that point limiting marriage became unconstitutional."
When Scalia again asked when that happened, Olson had no answer and could only say "There's no specific date in time. This is an evolutionary cycle.”
Justice John Roberts questioned the motive behind the drive to legalize same-sex marriage in a state that already gives same-sex couples most of the same legal protections and rights enjoyed by married heterosexual couples.
“So it's just about the label in this case,” Roberts said.
Olson replied: “The label 'marriage' means something.”
To this, Justice Roberts observed: “If you tell a child that somebody has to be their friend, I suppose you can force the child to say, ‘this is my friend,’ but it changes the definition of what it means to be a friend.”
Court watchers say it's very possible that a majority of the justices could simply dismiss the case on a technicality, which would allow same-sex marriage to continue in California, or rule in a way that applies only to California and/or to several other states which allow domestic partnerships that are almost identical to marriage in all but name.
In the arguments heard on Wednesday regarding the Defense of Marriage Act (DOMA), the justices seemed skeptical about the law which defines marriage as being between a man and a woman and prevents same-sex married couples from receiving the same federal benefits as their heterosexual married counterparts.
According to Fox News, Justice Kennedy said the law appears to intrude on the power of states that have chosen to recognize same-sex marriages.
Justice Ruth Bader Ginsburg called two classes of marriage established by DOMA to be full marriage and "skim-milk marriage."
Justice Elena Kagan read from a 1996 House of Representatives report which explained that the reason behind the law as being "to express disapproval of homosexuality," a statement that produced an audible reaction in the courtroom.
However, this case might also be tossed out on a technicality because there is some question as to whether the House Republicans, who is defending the law due to the Obama Administration's refusal to do so, have standing to defend the law. There is also a question of whether the administration forfeited its right to participate in the case because it changed its position on the law.
If the case is dismissed, DOMA would remain the law of the land.
The Court's ruling in both cases is expected sometime in June.
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