A narrow ruling likely on Prop. 8, but reasons for optimism nonetheless 

Reading too much into the questions that U.S. Supreme Court justices ask during oral arguments and then leaping to conclusions about the likely outcome of their deliberations can leave one looking foolish when a final ruling is issued. But at Tuesday’s Supreme Court hearing regarding Proposition 8, the justices seemed to clearly telegraph the low likelihood of a sweeping ruling involving same-sex marriage.

The issue before the court was rather simple at its heart: does California’s voter-backed initiative banning same-sex marriage violate the U.S. Constitution? Although the answer to that question is undoubtedly yes, there are complexities about this case that make it possible or even likely that the justices won’t even touch on the issue of same-sex marriage.

On Tuesday, several justices explicitly raised that possibility since the people defending Prop. 8 are private citizens, who typically are not allowed to act in this manner on behalf of the state. Sadly, this suggests that the court may dismiss the case with no ruling or at least sidestep the question by ruling that these Prop. 8 defenders had no right to bring a federal case.

That would mean no sweeping Supreme Court ruling legalizing same-sex marriages nationwide in one fell swoop.

And even if the justices decide that they should rule on same-sex marriage, there were indications Tuesday that their ruling might only affect California. For instance, Justice Samuel Alito warned against a broad ruling because same-sex marriages are a topic “newer than cellphones or the Internet.”

On the positive side, it did not appear as if the justices were inclined to uphold Prop. 8. Either dismissing the case or issuing a narrow ruling on technical grounds would allow the appeals court ruling overturning Prop. 8 to stand, clearing the way for same-sex nuptials in the state. That would make California the 10th state — along with the District of Columbia — to issue same-sex marriage licenses.

Justice Anthony Kennedy, watched by many as the swing vote on the issue, noted that these are surely “uncharted waters.”

There was no guaranteed outcome from Tuesday’s questioning. Kennedy’s own comments spanned a wide ideological range, from talking about upholding Prop. 8 as an expression of the will of the people to inquiring about the best interests of the estimated 40,000 California children who have parents in same-sex relationships.

A somewhat clearer picture emerged Wednesday from the court’s hearing regarding the Defense of Marriage Act, a federal law that forbids the government from granting same-sex couples the same rights accorded to other married couples. There seems to be a consensus that the court is willing to overturn that law, which would even benefit people in domestic partnerships when it comes to issues like federal taxes.

So now the waiting begins. The court is not expected to issue rulings in the cases until late June, after which, it seems, same-sex couples will be able to marry in California and not be penalized on federal benefits.

But this same court just surprised most observers with its ruling regarding President Barack Obama’s health care reforms, and there is still a chance of a similar surprise in these two cases. Either way, questioning before the court showed that the tide has definitely turned toward legalized same-sex marriage.

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