Supreme Court justices appeared divided Tuesday during historic arguments over the fate of gay marriage in California, at times almost regretful they took the case and at others splitting neatly into well-worn ideological camps.
Justice Anthony Kennedy, seen holding a key vote, wrote both of the court's major gay-rights decisions, most recently in 2003. On Tuesday, however, he made clear that the case of Proposition 8, a 2008 California voter initiative that rescinded the marriage rights of same-sex couples in the state, had left him conflicted.
'You're really asking…for us to go into uncharted waters, ' he told Theodore Olson, the lawyer challenging Proposition 8. 'And you can play with that metaphor. There's a wonderful destination or there's a cliff.'
Tuesday's arguments came in the first of two cases in which the high court for the first time is directly tackling gay marriage, now legal in nine states and the District of Columbia. The court on Wednesday will hear a challenge to the federal Defense of Marriage Act, a 1996 law denying federal recognition and benefits, such as exemption from the estate tax, to same-sex spouses.
Lower federal courts have invalidated that law, saying the federal government has accepted state-authorized marriages in other instances. Decisions in both cases are expected before July.
In the California case, lower federal courts already have ruled Proposition 8 unconstitutional. The justices could reinstate it or strike it down. They have a range of options in the latter scenario, including issuing a procedural ruling that would apply only to California or expanding same-sex marriage rights beyond California to some or even all of the 50 states.
Some justices appeared to search for a way to avoid placing the Supreme Court's imprimatur on a decision, one way or the other. Chief Justice John Roberts asked repeatedly whether the case should have reached the high court at all.
The state of California declined to defend Proposition 8 after its governor and attorney general concluded the measure was unconstitutional. Should the court adopt that position, it likely would leave in place a federal district court decision invalidating Proposition 8 but creating no binding precedent on gay marriage itself.
Although lower courts held that the official citizen-sponsors of the measure had legal standing to defend Proposition 8, Justice Stephen Breyer suggested that federal precedents might not allow private individuals to represent a state government's position in court.