The Washington Post

Early reaction suggests limited ruling on Prop 8

Oral arguments before the Supreme Court on California's constitutional ban on gay marriage have ended. What do they tell us about the fate of Proposition 8?

SCOTUSBlog's Tom Goldstein writes that "the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional."

No action would mean that same-sex marriages in California would likely resume, because an appeals court has already struck down the ban. The court could also find that since California officials have declined to defend Prop 8, the case is not properly before the Supreme Court. That would also leave the appeals court decision in effect.

Legal analyst Jeffrey Toobin wasn't sure what to think:

He elaborated on CNN, saying the court seemed to "almost be groping for an answer" and that it was "even harder to predict the result of this case after hearing this argument."

NBC News's Pete Williams said it was "quite obvious that the U.S. Supreme Court is not prepared to issue any kind of sweeping ruling" finding that gay couples have a constitutional right to marry. Several justices, he said, "seemed to be struggling to find a way to limit this case only to California" -- as either no ruling or a finding of no standing would.

Ted Olson, the lawyer representing the plaintiffs challenging Prop 8, told reporters shortly after oral arguments ended that "based upon the questions that the justices asked, I have no idea" how they will rule. His colleague David Boies noted that "there was no attempt to defend the ban on gay and lesbian marriage," a positive sign for their side.

Of course, interpretations of oral arguments are hazy at best. After oral arguments in last year's health-care case, many observers wrongly predicted that President Obama's landmark legislation would be ruled unconstitutional. We'll know the real answer by the end of June.

Rachel Weiner covers local politics for The Washington Post.

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