There were no great surprises Tuesday morning during oral argument over Proposition 8, California's beleaguered same-sex marriage ban. None of the justices of the United States Supreme Court shared an epiphany on the topic. They are all precisely who we thought they were, who they have always been. This is the most conservative Court in 75 years -- the most conservative federal appeals court in the nation -- and it showed, both in the ideology of the justices' questions and in the reluctance they expressed to issue a broad ruling.
Nor did the tone and tenor of the argument itself seem likely to generate an historic ruling. Indeed, one of the remarkable aspects of the give-and-take was how lukewarm is the federal government's position. As the conservative justices pointed out, the Obama Administration seems to want it both ways -- to preclude California from discriminating against same-sex couples, but to continue to allow other states to do so. This may make sense politically -- half the country still opposes same-sex marriage, after all -- but, legally, it's quite inconsistent.
So Justice Antonin Scalia and Samuel Alito are still outwardly hostile to any recognition of same-sex marriage rights. Justice Clarence Thomas is silently so. And the Court's four liberal members all seemed openly supportive of same-sex marriage rights -- or are at least hostile to the idea that Proposition 8 can survive. In this sense, the oral argument, at times dramatic, at times mundane, told us little that we didn't already known going into it. The Court is sharply divided on the topic. Same as it ever was. Did you really expect something different?
As it was last year with the federal health care cases, the fight over Proposition 8 will likely be decided by the two justices who were often more subtle than the rest Tuesday. Chief Justice John Roberts, the crafty politician who isn't inclined to support gay marriage rights, poked around the edges, searching for a path to end the case without necessarily ending the cause. And Justice Anthony Kennedy, who will almost certainly be in the majority, seemed unhappy with all of the options available to him. Here is the link to today's audio. Judge for yourself.
The Court is usually eager to resolve cases and controversies on the narrowest grounds possible, and if the justices are inclined to do so, here there are several options available to them. The argument had barely begun, for example, when the justices began peppering Charles Cooper, the attorney defending Proposition 8, with questions about whether he even had a legal right -- standing -- to be in court. California officials, remember, declined to defend the measure once it was deemed unconstitutional in 2010.
"Have we ever granted standing to proponents of ballot initiatives?" asked Justice Ginsburg. "No, your honor," Cooper answered. But then he reminded the justices that the California Supreme Court permitted his clients to defend Proposition 8 even though they aren't directly responsible for doing so.
The justices also raised the standing issue at length with Ted Olson, who represents the couples who challenged Proposition 8, and to a lesser extent with Donald B. Verrili Jr., the Solicitor General of the United States. If the justices dismiss the case on this technical ground, Proposition 8 will still be void -- and still subject to future litigation.