The justice whom many observers view as the swing vote in the case, Justice Anthony Kennedy, voiced worry at one point during the argument that proponents of same-sex marriages were asking the court to issue a decision that would “go into uncharted waters.”
After the oral argument, Pete Williams of NBC News reported that it seemed “quite obvious that the U.S. Supreme Court is not prepared to issue any kind of sweeping ruling” declaring that same-sex couples have a constitutional right to marry.
Williams said there seemed to be “very little eagerness” from any of the justices to “embrace that broad a ruling.”
LISTEN: Audio of the oral arguments
At issue Tuesday was California’s Proposition 8, the state constitutional amendment enacted by voters in 2008 that limits marriage to one man-one woman couples. Those seeking to have the court strike down Proposition 8 argue that the Equal Protection Clause of the Fourteenth Amendment includes a right for same-sex couples to marry.
Williams said that both the liberal and the conservative justices seemed wary of issuing a decision that would apply to any state outside of California.
It seemed possible the court would not issue any ruling on marriage at all – deciding instead that it had made a mistake in even agreeing to hear the case since the plaintiffs, supporters of Proposition 8, might lack the legal standing to bring the suit.
“I just wonder if the case was properly granted,” Kennedy said at one point to attorney Theodore Olson who was representing those challenging the California law.
And a few justices seemed to imply that it might be prudent for the court to step back and allow the states to assess what the effects of same-sex marriages might be.
Justice Sonia Sotomayor said at one point, “If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?”
Along similar lines, Justice Samuel Alito said “there isn't a lot 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,” Alito said to Solicitor General Donald Verrilli, who was arguing for the Obama administration, as a friend of the court, in opposition to Proposition 8.
“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?” - NBC, Supreme Court hints that it won't issue sweeping ruling