As it was last year with the federal health care cases, the fight over Proposition 8 will likely be decided by the two justices who were often more subtle than the rest Tuesday. Chief Justice John Roberts, the crafty politician who isn't inclined to support gay marriage rights, poked around the edges, searching for a path to end the case without necessarily ending the cause. And Justice Anthony Kennedy, who will almost certainly be in the majority, seemed unhappy with all of the options available to him. Here is the link to today's audio. Judge for yourself.

The Court is usually eager to resolve cases and controversies on the narrowest grounds possible, and if the justices are inclined to do so, here there are several options available to them. The argument had barely begun, for example, when the justices began peppering Charles Cooper, the attorney defending Proposition 8, with questions about whether he even had a legal right -- standing -- to be in court. California officials, remember, declined to defend the measure once it was deemed unconstitutional in 2010.

"Have we ever granted standing to proponents of ballot initiatives?" asked Justice Ginsburg. "No, your honor," Cooper answered. But then he reminded the justices that the California Supreme Court permitted his clients to defend Proposition 8 even though they aren't directly responsible for doing so.



The justices also raised the standing issue at length with Ted Olson, who represents the couples who challenged Proposition 8, and to a lesser extent with Donald B. Verrili Jr., the Solicitor General of the United States. If the justices dismiss the case on this technical ground, Proposition 8 will still be void -- and still subject to future litigation.

Another disappointing component of the argument was its lack of fidelity to the record below. For example, throughout the long history of this dispute, when asked for the justifications for treating same-sex couples differently from opposite-sex couples, Cooper has never had a good answer. In fact, the trial judge in the case long ago chastised him for failing to support his assertions with good evidence.



The same dynamic unfolded again Tuesday after Justice Elena Kagan asked Cooper a question about what real-world consequences "redefining marriage" would have. The attorney hemmed and hawed and it was left to Justice Scalia to bail him out. It's good to have friends in high places. But what about the facts?

Olson, as comfortable before the Court as any living lawyer, also has friends on the bench. And -- in this case, anyway -- foes, too. The chief justice asked him why the outlier in California was not Proposition 8, which evoked centuries of tradition, but rather the state supreme court ruling which preceded it, which recognized same-sex marriage rights.

