Prop 8 lawyer: Justices ‘troubled’ by accepting gay marriage case

David Boies, one of the attorneys who argued on behalf of same-sex marriage in front of the Supreme Court on Tuesday, said the justices seemed “troubled” by having taken the case.

“I think it’s hard in this case to read too much into their questions,” Boies said on CBS’s “This Morning.”

“But I think you can say they were troubled by having taken the case and being confronted with trying to make a decision on that issue now instead of letting it percolate a little bit, as one of the justices said.”

During Tuesday’s oral arguments, the Justices seemed to indicate they would not revive the ban on gay marriage struck down by a California appeals court, but also seemed hesitant to issue a broad ruling that would apply to same-sex marriage laws in other states.

Liberal justice Sonia Sotomayor is one of the judges who signaled that it may be too early for such a sweeping edict from the court.

"If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?” she asked. “We let issues perk, and so we let racial segregation perk for 50 years, from 1898 to 1954."

Still, Boies said he didn’t regret the case his side laid out, saying he gave the justices a “menu” of options to choose from.

Boies said he focused his oral argument on four points. He argued that Proposition 8 supporters had “no standing” with the court, and that California couldn’t take away same-sex marriage rights after having already granted them, as the 9th U.S. Circuit Court of Appeals ruled. In addition, Boies said opponents of same-sex marriage were merely looking to “impose a badge of inferiority on gay and lesbian citizens to prevent them from having the name marriage when they get all the other rights.”  He also pushed the justices to acknowledge marriage as a “broad right” that should be applied equally across the country.

“We argued all four of those,” he said, while acknowledging the multi-faceted nature of the decision before the court.

“There were four main arguments they were grappling with, all in the space of about an hour, so you had a number of questions come from different justices about different legal theories,” he continued.

Still, Boies flashed some optimism that the court might surprise in his favor. 

Justice Anthony Kennedy, who typically casts the court’s swing vote, led a line of questioning on how California allows same-sex couples to adopt children, with or without the right to marry.

“There are some 40,000 children in California ... that live with same-sex parents, and they want their parents to have full recognition and full status,” Kennedy said. “The voice of those children is important in this case, don’t you think?”

Boies said the opposition lawyers conceded this point.

“One of the things that was absolutely clear from the record, even the defendants witnesses admitted it, which was that the children, tens and hundreds of thousands of children being raised today by gay and lesbian couples are seriously harmed by not permitting the people raising them to be married,” he said. “And there was no dispute about that, even the defendants witnesses admitted that, and so you’ve got a serious harm to these children that’s ongoing every day and so I think focusing on that arm was an important aspect of the consideration.”