After more than an hour of oral arguments this morning in Hollingsworth v. Perry,the challenge to the constitutionality of California’s ban on same-sex marriage, it came down to this: attorney Charles Cooper, representing the proponents of that ban, Proposition 8, returned to the lectern for his ten minutes of rebuttal time. He immediately confronted a question from Justice Anthony Kennedy, whom many regard as the critical vote in this case. Kennedy told him bluntly to “address why you think we should take and decide this case.” And with that, the Justice may have confirmed that the real question before the Court is not whether it would strike down Proposition 8, or what the broader effect of such a decision might be, but whether it is going to reach the merits of the case at all – a prospect that would be (to say the least) anticlimactic but seemed to be a real possibility by the end of the morning.
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