Twice during the oral arguments, Kennedy questioned why the court had granted to hear the Prop 8 case, suggesting that his four conservative colleagues had pushed the issue.
According to the Los Angeles Times, if Kennedy has his way, the court would strike down California’s ban on same-sex marriage without broadly ruling on the issue:
Kennedy is likely to have the support of the court’s four liberal justices when they meet later this week to decide the California case. They could decide to write an opinion that strikes down the California ballot measure on the grounds that it denies same-sex couples a right to marry. Or they could vote to dismiss the appeal, which also would have the effect of voiding Prop. 8.
On several occasions, Kennedy and other justices said they were wary of ruling broadly in a way that would make gay marriage legal nationwide.
But at one point, Kennedy said upholding California’s ban on same-sex marriage would cause real harm. He said there were more than 40,000 children being raised by same-sex couples in California.
“It’s the voice of those children” that should be heard, he said. “They want their parents to have the full recognition” of marriage, he added.
While Kennedy, a California native and a proponent of both LGBT rights and states’ rights, appeared sympathetic to gay marriage, the four conservative justices remained vehemently opposed.
Chief Justice John Roberts stated that marriage has been limited to a man and a woman since “time immemorial.” Justice Antonin Scalia, unsurprisingly, said that he saw no grounds for declaring gay marriage a constitutional right while Justice Samuel Alito urged the court to move cautiously before redefining marriage.
Both Roberts and the more liberal Justice Ruth Bader Ginsberg questioned whether Prop 8’s sponsors have legal standing to defend it in the Supreme Court.
“Have we ever granted standing to the proponents of a ballot measure?,” Ginsburg asked, suggesting the court could dismiss the case on procedural grounds.