4 Supreme Court justices skeptical of gay marriage ban, expert says

By Maura Dolan

March 26, 2013 12 AM PT

SAN FRANCISCO -- Jennifer Pizer, senior counsel of Lamba Legal, a gay rights group, said that at least four justices seemed skeptical that the sponsors of Proposition 8 had the legal right to appeal the case.

“There were some very hard questions about standing,” she said, “surprisingly hard questions.”

She said the justices did not ask questions that indicated they were considering raising constitutional protections for gays and lesbians, as retired federal District Judge Vaughn R. Walker did in his ruling striking down Proposition 8. She speculated the court might raise that issue during Wednesday’s argument on the federal challenge to the Defense of Marriage Act.

FULL COVERAGE: Battle over gay marriage

Some of the justices also seemed skeptical of the U.S. 9th Circuit Court ruling that struck down the marriage ban on narrow grounds that applied only to California, she said. “Different questions showed that approach didn’t fit that comfortably for them,” Pizer said, studying her notes from the argument. The 9th Circuit based its ruling on the fact that Proposition 8 took away a right gays and lesbians already had. The California Supreme Court had struck down the state’s marriage ban six months earlier.

“I don’t think there was a single question about whether it matters if you had a right that was taken away,” Pizer said. “And in fact the chief justice at one point seemed dismissive of that idea.”

She said Chief Justice John G. Roberts Jr. noted that marriage rights existed in California for only six months.

CHEAT SHEET: Your guide to Prop. 8 and DOMA

“It does suggest that the court wouldn’t be using exactly the same reasoning that the 9th Circuit, based on what the chief justice said,” Pizer said.

Roberts also asked a skeptical question about whether the label “marriage” really mattered. “Is this just about the label?” she quoted him saying. He said a parent can tell a child to be friends with somebody but if the child doesn’t actually like that person, that would be changing the meaning of the word friend, she said.

Gay marriage foes expressed confidence that the U.S. Supreme Court could uphold the state’s ban on same-sex unions after hearing arguments Tuesday.

“I think we are going to win this case,” Andy Pugno, lawyer for Proposition 8 campaign. “We definitely represented the winning case today and the justices asked good thoughtful questions and we were able to say everything that we wanted to get in front of the court today.”

Pugno, counsel for Protectmarriage.com, said he was unimpressed by the arguments in favor of lifting the voter-approved ban on same-sex marriages in California.

CHEAT SHEET: Your guide to Prop. 8 and DOMA

The Times’ David G. Savage reported that the justices sounded closely split, but Justice Anthony M. Kennedy suggested that the court should strike down the California ban without ruling broadly on the issue of same-sex marriage.

Twice Kennedy questioned why the court had even voted to hear the California case. “I wonder if this case was properly granted,” he said at one point.

His comments suggested that the court’s four most conservative justices voted to hear the California case. Had the justices turned down the appeal, as Kennedy suggested, Proposition 8 would have been struck down as ruled by by the 9th Circuit Court.

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