UPDATE: Towelroad has an audio recording of today’s oral arguments, and also a transcript.
Tom Goldstein of the highly respected SCOTUSblog was in the audience for the Supreme Court’s oral arguments today in the Proposition 8 case, and came away with some predictions.
…Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail. He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new. He also noted the doubts about the petitioners’ standing. So his suggestion was that the case should be dismissed.
If those features of the oral argument hold up – and I think they will – then the Court’s ruling will take one of two forms. First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing. That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8. [...]
Second, the Court may dismiss the case because of an inability to reach a majority. Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him. Others on the left may agree. That ruling would leave in place the Ninth Circuit’s decision.
The upshot of either scenario is a modest step forward for gay rights advocates, but not a dramatic one.
Although it’s not the sweeping victory SSM advocates want, overturning Prop 8 would still be a big deal. Currently, 16% of Americans live in states where same-sex marriage is legal. If California is added, that number will almost double, to 28%.
Tomorrow, the Supreme Court will hear oral arguments on the Defense Of Marriage Act. It’s widely expected that the court will find DOMA’s ban on the federal government recognizing SSM to be unconstitutional.
JUSTICE SCALIA: When did it become unconstitutional to ban same-sex marriage? Was it 1791? 1868?
TED OLSON: When did it become unconstitutional to ban interracial marriage?
JUSTICE SCALIA: Don’t try to answer my question with your own question.
UPDATE TO THE UPDATE:
The above was a paraphrase from a witness, but the actual transcript isn’t so bald:
JUSTICE SCALIA: I’m curious, when - when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?
MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.
JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. (Laughter.)