Despite the drama of a Supreme Court showdown on same-sex marriage, justices hinted yesterday that they might not even issue a national ruling on the hot-button issue.
With thousands of protesters packing the streets outside, and millions more weighing in on blogs and social media, the nation’s top court heard arguments on the merits and pitfalls of gay and lesbian marriage.
But several justices said it may be premature for the court to rule on whether same-sex marriage should be legal in all 50 states.
“We don’t prescribe law for the future,” Justice Antonin Scalia said. “I’m curious: When did it become unconstitutional to exclude homosexual couples from marriage?”
Justice Sonia Sotomayor also wondered if the court should take the case while society is still experimenting with the issue.
“Why is taking the case now the answer?” she asked.
Such a conclusion would allow the court to punt on the issue and let stand a lower-court ruling that overturned a California ban.
“I just wonder if the case was properly granted,” Justice Anthony Kennedy, the widely recognized swing vote, said during the 80-minute session.
He said the case was taking the court into “uncharted waters.”
At issue is a state ban, Proposition 8, approved by California voters in 2008, which set aside a state Supreme Court decision allowing same-sex marriages.
Two gay couples went to court to challenge the ban, which was struck down by a San Francisco judge.
When the state’s governor and attorney general decided not to appeal that ruling, the cause was taken up by two groups of private citizens, who lost their case in a federal appeals court, setting the stage for the current US Supreme Court battle.
Gay-marriage supporters insisted the issue is ripe for the Supremes to issue a ruling in favor that would apply across the country.
“This is a measure that walls off the institution of marriage, which is not society’s right,” lawyer Ted Olson told the court on behalf of gay nuptials.
“It’s an individual right that this court again and again and again has said the right to get married, the right to have the relationship of marriage, is a personal right.”
The ban’s backers, represented by attorney Charles Cooper, were warned that they faced an uphill climb in getting the high court to intervene.
“I don’t think we have ever allowed something like that,” said Chief Justice John Roberts.
But the justices listened intently, including Kennedy, who expressed concern for children of same-sex couples.
“They want their parents to have full recognition and legal status,” Kennedy told Cooper. “The voice of those children is considerable in this case, don’t you think?”
Meanwhile, the court’s liberal wing pounded Cooper for linking marriage to childbearing, with Justice Elena Kagan asking if states could also prohibit couples over age 55 from getting married.
The court could rule on the case in June.
Same-sex marriage won the backing of 53 percent of Americans in the latest CBS poll .