Both sides of the gay marriage debate expressed optimism Tuesday after the U.S. Supreme Court heard the first of two days of historic legal arguments.
John Eastman, a Chapman University constitutional law professor who supports California's Proposition 8 ban on same-sex marriage said he was “cautiously optimistic” after listening to the arguments in the courtroom.
He said Justice Sonia Sotomayor asked what other restrictions, such as prohibitions on adult incest or polygamy, would fall if the court treated marriage as a fundamental right.
FULL COVERAGE: Battle over gay marriage
“Those are pretty serious questions coming from that side of the bench,” Eastman said.
Some of the justices appeared to want to dismiss the case on standing grounds, but “I don’t think it persuaded a majority of the court," Eastman said.
He said Justice Anthony M. Kennedy observed that the whole point of the initiative process was to control government officials when they aren’t doing what the people want them to do.
CHEAT SHEET: Your guide to Prop. 8 and DOMA
“I just don’t see them rejecting jurisdiction here,” Eastman said.
Still, he said, “the tenor of the argument certainly suggests they are willing to defer to the political judgment and let this thing play out.”
Andy Pugno, a lawyer for the Proposition 8 campaign, told The Times he believes they will win the case.
"What makes me optimistic is the court's questions showed that the court was well tuned in to what exactly our arguments are, and also exposed the weakness of many of the arguments of the challengers of Prop. 8," he said.
"One justice noted that this is something newer than cellphones and the Internet and questioned whether that is something the court should be rushing to decide," he added.
Pugno described the Supreme Court proceedings as "the first time we feel we have a fair shot in front of a fair tribunal."
On the steps of the Supreme Court shortly after the hearing, California plaintiffs in the Proposition 8 case also expressed confidence and said they are looking forward to the high court’s ruling.
“Like all Americans, I believe in equality,” said Sandy Stier, who has been waiting more than a decade to marry her partner, Kris Perry.
“But more than anything, I believe in love.”
Stier said Prop. 8, which bans gay marriage in California, is a discriminatory law that hurts people – both gays and lesbians and their children.
Two of the couple’s children, twin sons, stood at the press conference in support.
“I just want to say how incredibly proud we are of our parents,” Spencer Perry said. “We love them. We love our family and we look forward to the day when we will be treated equally, just like our neighbors' families.”
The Times' David G. Savage reported that the justices sounded closely split, but Kennedy suggested during oral arguments that the court should strike down the California ban without ruling broadly on the issue of same-sex marriage.
Twice Kennedy questioned why the court had even voted to hear the California case. “I wonder if this case was properly granted,” he said at one point.
His comments suggested that the court’s four most conservative justices voted to hear the California case. Had the justices turned down the appeal, as Kennedy suggested, Proposition 8 would have been struck down as ruled by the 9th U.S. Circuit Court of Appeals.
Minutes after the conclusion of arguments, Constitutional Accountability Center Vice President Judith E. Schaeffer released the following statement:
“When pressed by the justices, the lawyer defending Proposition 8 could not come up with any legitimate reason for excluding gay and lesbian couples from the freedom to marry. The justices, while uncomfortable with Proposition 8, seemed hesitant to rule on the merits, but as Justice Kennedy noted, there was concern about branding the families of nearly 40,000 children in California as second-class.
"One important question Justice [Antonin] Scalia asked former Bush Solicitor General Theodore Olson, who defended marriage equality, was when it became unconstitutional to deny gay and lesbian couples the right to marry. The answer is 1868, when the American people added the 14th Amendment's universal guarantee of equality to the Constitution.”
Around Southern California, many people closely monitored their televisions.
By 9:30 a.m., Todd Barnes, general manager at The Abbey bar in West Hollywood, said he had already fielded several phone calls from customers asking if the well-known gay and lesbian bar was doing anything special for Tuesday's Supreme Court hearing.
"Because The Abbey is what it is, people will probably trickle in all day," Barnes said as he walked to a TV at the front of the bar and tuned it in to C-SPAN. "I think I need to call in another bartender."