In oral arguments before the U.S. Supreme Court today, the justices' questions suggest that the Court may neither decide that the Constitution requires all states to allow same-sex couples to marry nor rule against other courts that denied voters the right to define marriage as the union of one man and one woman.
In the case, Hollingsworth vs. Perry, the Court was asked to rule on whether a lower court was wrong to declare that California's Proposition 8, a referendum that decided that same-sex couples may not get married, is unconstitutional.
Tom Goldstein, founder and contributor to Scotusblog, attended the oral arguments and sent his initial impressions via Twitter and a blog post. Goldstein believes that the Court is unlikely to either strike down Proposition 8 as unconstitutional or uphold Proposition 8.
"The bottom line, in my opinion, is 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," Goldstein wrote.
The case is expected to be decided on a narrow five to four vote with Justice Anthony Kennedy as the swing vote. Goldstein said that, based upon his questions, Kennedy believes it is too early to rule on same-sex marriage, suggesting that Kennedy will support a more narrow ruling.
One way that the Court could come to a middle-of-the-road decision is to decide the case on "standing," or whether the defendants have a right to have their case heard before the Court. Since the state of California is not defending the case through its governor or attorney general, as would typically happen, the Court could decide that the defendants do not have the right to bring the case before Court.
The Court could also dismiss the case because of an inability to reach a majority, Goldstein noted. Either of these decisions would leave the district court's decision that struck down Proposition 8 in place, but would not impact other state's decisions regarding gay marriage.
CNN legal analyst Jeffrey Toobin was more cautious in his predictions than Goldstein, but came away with some similar impressions.
"It is even harder to predict the results of this case after hearing this argument," Toobin said.
Justices Samuel Alito, Antonin Scalia and Chief Justice John Roberts were certainly opposed to the idea that the Constitution requires states to legalize same-sex marriage; and the four liberals, Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, seemed favorable to redefining marriage for all 50 states, Toobin believes. Justice Clarence Thomas did not, as usual, ask any questions, but he often aligns with the conservative wing of the court. As Goldstein also suggested, this leaves Kennedy as the swing vote in the case.
Kennedy "said things that would give comfort to both sides," Toobin said. "He did not seem anxious to even resolving this case. He suggested a couple of times that perhaps this whole issue is premature."
On Wednesday, the Court will hear arguments in a second case involving gay marriage. That case will address the constitutionality of the Defense of Marriage Act, a federal law that defines marriage as the union of one man and one woman for the purposes of federal law.