[quote]WASHINGTON -- All eyes were on Justice Anthony Kennedy at the Supreme Court on Tuesday morning as his eight colleagues appeared about evenly divided on the fate of Proposition 8, the California ballot referendum passed in November 2008 that banned same-sex marriage, reversing by popular vote the state Supreme Court's decision just months earlier to recognize marriage equality. Kennedy acknowledged that while the social science on gay marriage is relatively new, there is an “immediate” legal harm to those same-sex couples who cannot be married. He said the voice of the thousands of children of same-sex couples was an important aspect of the case. “They want their parents to have full recognition and legal status,” Kennedy told Charles Cooper, who was representing supporters of Prop 8’s ban on gay marriage. “The voice of those children is considerable in this case, don’t you think?” Kennedy also said he was “trying to wrestle with” whether a same-sex marriage ban should be viewed as a gender-based classification, calling it a “difficult question.” The case, Hollingsworth v. Perry, presents the simple question of whether Prop 8 unconstitutionally discriminates against gays and lesbians. But that simple question is so politically loaded that the justices spent much of the hour-long oral argument exploring how, exactly, the California constitutional amendment should fall. On one end of the spectrum is the maximalist approach put forward by the two same-sex California couples, represented by conservative legal icon Ted Olson and liberal superlawyer David Boies. The unlikely lawyer duo -- they faced off against each other at the Supreme Court a dozen years ago in Bush v. Gore -- argue that any attempt to define marriage as between one man and one woman deprives gays and lesbians of equal protection and the fundamental right to marry. The justices spent a good deal of time in the first half of the hour examining whether the parties defending Prop 8 had legal standing, and seemed to cast doubt on whether they did. Chief Justice John Roberts indicated that the case may not reach the central issue of whether gay couples are entitled to marriage, and might fall on issues of standing. Cooper argued that it was an “accepted truth for almost everyone who ever lived” that marriage was between a man and a woman. He said knocking down Prop 8 “puts a stop to that ongoing democratic debate” over same-sex marriage, conceding that the political consensus on same-sex marriage was “changing rapidly.” Justice Scalia argued there was “considerable disagreement” over the “consequences” of same-sex couples raising children. “I take no position on whether it’s harmful or not, but it’s certainly true there is no consensus to that scientific question at this point,” he said. Justice Ruth Bader Ginsburg noted that one of the decisions Cooper was relying on in the case was written in 1971, when “same-sex intimate conduct was considered criminal.”[/quote] [url=http://www.huffingtonpost.com/2013/03/26/supreme-court-proposition-8_n_2950615.html#11_no-sweeping-ruling]Story on Huffpost[/url] [url=http://news.blogs.cnn.com/2013/03/26/same-sex-marriage-a-potential-supreme-court-blockbuster/?hpt=hp_t1]CNN Blog (Currently being updated)[/url] From CNN... [quote][Updated at 12:04 p.m. ET] “Today we feel we clearly presented the winning case for marriage,” says Andrew Pugno, general counsel for ProtectMarriage.com, who is speaking with reporters now.[/quote] [quote][Updated at 11:48 a.m. ET] Kris Perry, a plaintiff in the Prop 8 case, just spoke, saying: "In this country as children, we learn that there's a founding principle, that all men and women are created equal. … Unfortunately with the passage of Proposition 8, we learned that there are group of people in California who are not being treated equally." "We look forward to a day when prop 8 is officially eliminated and equality is restored to the state of California."[/quote] [quote][Updated at 11:43 a.m. ET] According to Toobin, there were a lot of questions along these lines from Justices Scalia and Alito: We don’t know the effects of same sex parenting on children, so why don’t we wait and let the states go experiment? Why do we, the Supreme Court, have to get involved in this process? Toobin said Roberts also seemed sympathetic to these questions.[/quote] [quote]Conservative Justices Scalia, Alito and Roberts were "very hostile of idea of the court imposing same sex marriage," according to Toobin. The four Democratic justices seemed favorably disposed. Justice Kennedy seemed like he was in the middle, he said things that would "give comfort for both sides," Toobin says. Kennedy suggested the issue was brought prematurely before the court.[/quote] [quote]The justices seemed very focused on how Prop 8 affects children, with Justice Kagan at some point suggesting that California have a law allowing same-sex marriage for people past child-bearing age, Toobin said. Kagan said, according to Toobin: “I assure you if two 55 year old people, there aren’t a lot of children (coming from that marriage).”[/quote] [quote][Updated at 11:34 a.m. ET] "This was a deeply divided Supreme Court, a court that seemed groping for answers," CNN senior legal analyst Jeffrey Toobin said after watching the arguments. "Now I think its even harder to predict the result of this case after hearing this argument."[/quote] From the looks of it, there won't be a sweeping ruling like in Loving vs. Virginia. However, it does seem that SCOTUS might rule 5-4 in favor of overtuning Prop 8, with Justice Kennedy joining the Liberal Justices. Of course, Kennedy also seemed sympathetic to the Conservatives, so he could flip over the next few weeks. Tomorrow is the DOMA case, where It will most likely be even more controversial. Thoughts?