WASHINGTON (CN) - A large crowd swarmed outside of the U.S. Supreme Court Tuesday while inside the justices heard arguments over the controversial gay marriage ban in California instituted with Proposition 8.
The issue of standing represented a focal point of the roughly 80-minute hearing, offering the possibility that the high court might find a way out of deciding what Justice Anthony Kennedy called "unchartered waters."
Since both the U.S. and California governments have refused to defend Prop. 8 on appeal, the bill's sponsors from ProtectMarriage.com have been left to argue that legalizing gay marriage harms the state's interest in protecting traditional marriage and procreation.
Though the voter-approved initiative has been struck down as unconstitutional by both a federal judge and the 9th Circuit, gay marriage remains illegal in California pending resolution by the Supreme Court.
U.S. Solicitor General Donald Verrilli argued as amicus curiae for Prop. 8 opponents.
With neither party able to completely convince the court of their standing arguments, Chief Justice John Roberts allowed the lawyers to also debate the merits of the case.
"[Prop. 8] walls-off gays and lesbians from marriage, the most important relation in life, according to this court, thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal, and not okay," Gibson, Dunn & Crutcher attorney Theodore Olson said in his opening statement for the gay couples who challenged the ban, Kristin Perry, Sandra Stier, Paul Katami and Jeffrey Zarillo.
Chris Cooper, who represents Dennis Hollingsworth and the bill's other sponsors, defended the voter initiative as Californians "hitting the pause button" on a controversial issue that will have real life effects on families and their children. He said Californians were "hitting the delete button" for a class of people.
California voters passed Prop. 8 in 2008, amending the California Constitution to define marriage as between a man and a woman. The proposition reversed a California Supreme Court decision that gave same-sex couples the right to marry.
Justice Antonin Scalia picked up on this point about mid-way through the hearing. "The California Supreme Court decides what the law is," Scalia said. "That's what we decide, right? We don't prescribe law for the future," stated Justice Antonin Scalia. "We decide what the law is. I'm curious, when did it become unconstitutional to exclude homosexual couples from marriage?"
Olson answered by asking, "when did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?"
Scalia chided the lawyer's nonanswer while replying that those questions were rooted in the equal protection clause. "Don't give me a question to my question," Scalia said.
Justice Samuel Alito also addressed the issue later during an exchange with Verrilli. "Traditional marriage has been around for thousands of years," Alito said. "Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn't a lot of data about its effect. And it may turn out to be a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe. But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? I mean we ... do not have the ability to see the future."