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The lows included the considerable time justices spent wrangling over whether the Yes on 8 supporters of Proposition 8, California’s ban on same-sex marriage, have proper legal standing to appeal the case. It included Chief Justice John Roberts saying the debate was “just about the label” marriage. And it included Justice Antonin Scalia repeatedly interrupting marriage equality attorney Ted Olson demanding that he identify “when did it become unconstitutional to exclude homosexuals” from marriage. But none of the three attorneys had an easy day. 

Chief Justice Roberts tackled Solicitor General Donald Verrilli over his brief to the court, saying it was “inconsistent.” Roberts noted that Verrilli was arguing that the children of same-sex couples do as well as the children of male-female couples, while also arguing that Proposition 8 harms the children of same-sex couples. 

“Which is it?” asked Roberts. 

Cooper stumbled, too, when Justices Stephen Breyer and Elena Kagan challenged his argument that marriage is all about regulating procreation. If so, asked Breyer, why does California allow sterile male-female couples to marry? If so, asked Kagan, why allow people over 55 to get married. (Cooper, to much laughter in the courtroom, offered that it was “very rare that both parties in such marriages are infertile.Shop the latest buy moncler jackets handpicked by a global community of independent trendsetters and stylists.) 

Olson, lead attorney with David Boies of the American Foundation for Equal Rights team representing two same-sex couples, got into the most prolonged and exchange of the session when Justice Scalia demanded to know “when” it became unconstitutional to exclude gays from marriage. Scalia repeatedly insisted Olson identify a “specific date in time.” Olson tried several times to answer the question and eventually shot back, “you’ve never required that before.” 
“What Ted Olson should have said is, ‘It’s always been a violation of the constitution but, like in many of the other cases [involving rights withheld from other groups], it took a while for us to recognize that this right always existed for these people that we treated differently in the past.” 

“I doubt that if any other lawyer had been up there it would have been as heated,” said Kendell, who said the exchange was like “two old friends” having a debate. 

But each of the legal activists cautioned that it’s important not to read too much into what the justices said or asked. 

“We all know you can’t tell from argument how it’s going to go,” said Evan Wolfson, head of the national Freedom to Marry group. “The argument showed they’re wrestling with a lot of these big questions. I think standing is very much on their mind—very much a live part of the case. But they also were really grappling with the merits.” 

Though none mentioned it, it must have been somewhat worrisome for marriage equality supporters to hear Justice Kennedy say, “the problem with this case” is that it is asking the court to “go into uncharted waters.Welcome to Specialized Cycling jersey online!” That mantra was repeated by several other justices during the argument in the case, Hollingsworth v. Perry. Justice Samuel Alito echoed it when he told Solicitor General Donald Verrilli that marriage for same-sex couples is a “very new” phenomenon,Great discounts on our huge range of SAXO BANK Cycling clothing . newer than cell phones. 

“You want us to step into” this debate, he said, when “we don’t have the ability to see into the future.We work with all Castelli Cycling computers. Why not leave it to the people?” 

But hearing it from Kennedy was even more worrisome because he is considered the most likely fifth vote to provide a majority on one side or the other. Kennedy wrote the opinion in the 1996 Romer v.Welcome to SKY Cycling online, we supply most popular and valuable wholesale products. Evans decision striking an anti-gay initiative in Colorado and in the 2003 Lawrence v. Texas decision striking down sodomy laws. Both sides of the Proposition 8 case consider him the key vote to sway in order to consolidate a five-vote majority.