Gay marriage advocates, hoping for constitutional recognition of their right to wed, encountered a cautious and sometimes skeptical U.S. Supreme Court during arguments Tuesday on California’s same-sex marriage ban.

The arguments were the court’s first substantive review of whether the equal protection clause of the 14th Amendment requires states to include same-sex couples in the fundamental right of marriage. In the end, several justices, perhaps even a majority, appeared to be searching for a narrow way to decide the case or to dispose of it without a decision on the merits.

"If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?" asked Justice Sonia Sotomayor of Charles Cooper of Cooper & Kirk, counsel to proponents of California’s ban, who had urged the justices not to cut off the national debate.

"We let issues percolate, and so we let racial segregation percolate for 50 years from 1898 to 1954," she added. "And now we are only talking about, at most, four years" from the time California’s ban was approved by voters.

Justice Anthony Kennedy pressed a similar point to Cooper’s opponent, Theodore Olson of Gibson, Dunn & Crutcher, counsel to the ban’s opponents, who argued for a constitutional right to same-sex marriage. "You’re asking us to go into uncharted waters in a case where the opinion [of the lower court] is very narrow, and there is a substantial question on standing," Kennedy said. "I wonder if the case was properly granted."

But there seemed no doubt in Justice Antonin Scalia’s mind that the merits should be reached.

"It’s too late for that now, isn’t it?" he interjected. "We have crossed that river, I think."

The only thing Cooper and Olson agreed on was that the justices should decide the Hollingsworth v. Perry case.

It stems from a lawsuit filed by Olson and co-counsel David Boies of Boies, Schiller & Flexner, challenging California’s ban — Proposition 8 — on behalf of two gay couples who seek to be married. The ban was enacted by voters shortly after the California Supreme Court had ruled that there was a right to same-sex marriage under the state constitution.

California’s governor and attorney general refused to defend Prop 8 in the federal lawsuit. The ballot initiative committee behind Prop 8 intervened to defend it. A federal district judge ruled that the ban was unconstitutional.

Appeals narrowly affirmation

A panel of the U.S. Court of Appeals for the Ninth Circuit affirmed, but on narrower grounds. The divided panel held that the right to marriage, once given, had been withdrawn on the basis of animus and that violated the equal protection clause.

A question of the Prop 8 proponents’ standing to defend the ban loomed throughout the litigation until, on a question certified by the Ninth Circuit to the California Supreme Court, that state high court ruled that the proponents did have standing under the state constitution.

When the Supreme Court granted review to the Prop 8 proponents’ appeal, the justices ordered both sides to brief and argue the standing question. It was the first question posed by Chief Justice John Roberts Jr. during Tuesday’s arguments.

Cooper argued that the official Prop 8 proponents had standing as representatives of the people and the state of California. He relied on the California Supreme Court ruling.

Justice Ruth Bader Ginsburg noted that the court had never granted standing to proponents of ballot initiatives. "The proponents are interested in getting it on the ballot and seeing that all of the proper procedures are followed, but once it’s passed, they have no proprietary interest in it," she said. "It’s law for them just as it is for everyone else."

Olson told the court that more was needed for Article III standing in federal court than what the California Supreme Court decided under its state law. The proponents of Prop 8, he said, are not officers of the state, have no fiduciary duty, could have conflicts of interest, and could incur enormous legal fees in defense of something state officials have rejected.

Kennedy, who earlier had expressed concerns about standing, told Olson, "If we accept your argument, it would create a one-way ratchet that favors the state and allows governors to thwart the initiative process."

The court’s division on the standing issue also was reflected on the merits. The Perry case asks whether the 14th Amendment’s equal protection clause prohibits California from defining marriage as the union of a man and woman.

Cooper said the central and historical purpose of marriage was to promote responsible procreation. Same-sex couples cannot procreate. They are not similarly situated to opposite-sex couples, he said, and cannot be considered a class for purposes of heightened constitutional scrutiny. His opponents, he said, have to prove beyond a doubt that there is no rational basis for the Prop 8 ban and they cannot do it.

Justice Elena Kagan asked Cooper what harms he sees to the institution of marriage and to opposite-sex couples if same-sex marriage were allowed.

"The plaintiffs’ expert acknowledged that redefining marriage will have real-world consequences, and that it is impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be," he answered. "I think it better for California to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing."

That answer, however, was not sufficient for Scalia, who said he could give one concrete example. "If you redefine marriage to include same-sex couples, you must permit adoption by same-sex couples, and there’s considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not."

Procreation argued as ‘vital’

Since Cooper’s argument was that procreation was "vital" to the marriage right, Kagan asked Cooper if a state could deny marriage licenses to anyone above age 55.

Cooper said that would not be constitutional, explaining to laughter in the courtroom, "Even with respect to couples over the age of 55, it is very rare that both parties to the couple are infertile." Kagan promptly replied, also to laughter, "I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage."

While Cooper faced most questions from the court’s more liberal members, Olson withstood his own barrage from the court’s conservatives.

He told the justices that Prop 8 is "a measure that walls off the institution of marriage, which is not society’s right. 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. It’s a part of the right of privacy, association, liberty and the pursuit of happiness." Procreation, he said, is not a part of the right to get married.

Roberts expressed some doubts, saying, "I’m not sure that it’s right to view this as excluding a particular group. When the institution of marriage developed historically, people didn’t get around and say let’s have this institution, but let’s keep out homosexuals. The institution developed to serve purposes that, by their nature, didn’t include homosexual couples."

Marcia Coyle writes for the National Law Journal, a Daily Report affiliate.