WASHINGTON - As the court on Tuesday weighed the question of whether gay couples have a constitutional right to marry, six justices intimated that they would vote to dismiss the case, which arose from a California ban on same-sex marriages.
"I just wonder if the case was properly granted," said Justice Anthony M. Kennedy, showing a court torn over whether this was the right time for a decision on a fast-moving social issue.
Justice Sonia Sotomayor seemed to share that concern. "If the issue is letting the states experiment and letting the society have more time to figure out its direction," she said, "why is taking a case now the answer?"
Those two and others seemed driven to that conclusion by an argument in which no attractive middle ground emerged on the substance of the question before them: whether voters in California were entitled to enact Proposition 8, which overturned a state Supreme Court decision allowing same-sex marriage.
Justices who appeared sympathetic to gays' quest to wed indicated that there is no principled way to issue a ruling that could apply only in California or only in the nine states that have robust civil union or domestic partnership laws but withhold the word marriage.
That would appear to leave the court with an all-or-nothing choice on the merits: either a ruling that would require same-sex marriage in all 50 states or one that would say that all states may do as they wish. Neither choice seemed attractive to a majority of the justices.
A decision is expected by the end of June.
Five members asked questions indicating that they might vote to dismiss on the threshold issue that supporters of Proposition 8 lacked standing to appeal a lower court's decision. Chief Justice John Roberts seemed particularly interested in the standing issue.
Kennedy seemed more open to the possibility that the proponents of Proposition 8 had standing, but he twice asked lawyers why the court should not dismiss the case outright. When the justices have second thoughts about agreeing to hear a case, they sometimes dismiss it as "improvidently granted."
Questions from the justices do not always reliably forecast votes, and many of the justices also indicated their views of the central issue presented in the case.
When Kennedy turned to the merits of the case, he voiced sympathy for the children of gay couples.
"There are some 40,000 children in California," he said, who "live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case."
But Kennedy said he's uncertain about the consequences for society of allowing same-sex marriage. "We have five years of information to weigh against 2,000 years of history or more," he said, referring to traditional marriage.
Justice Samuel Alito said the court should not move too fast.
"You want us to step in and render a decision based on an assessment of the effects of this institution, which is newer than cellphones or the Internet?" he said.
Many of the questions directed to Charles Cooper, a lawyer for opponents of same-sex marriage, concerned whether there's any good reason to exclude gay couples from the institution.
He counseled caution. "It is an agonizingly difficult, for many people, political question," he said. "We would submit to you that that question is properly decided by the people themselves."
Justice Elena Kagan asked him how letting gay couples marry harms traditional marriages. "How does this cause and effect work?" she asked.
Cooper responded that "it will refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples." The key to marriage, he said, is procreation.
Justice Stephen Breyer asked about sterile couples.
"There are lots of people who get married who can't have children," he said.
Kagan asked whether the government could ban a man and a woman who are older than 55 from marrying because they would not be able to have children. Cooper said the court could not constitutionally ban such marriages.
Justice Antonin Scalia remarked, sarcastically, that the government could require people applying for a marriage license to fill out an intrusive questionnaire. When Kagan noted that people are frequently asked about their age by the government, Scalia joked about former Sen. Strom Thurmond, who fathered a child in his 70s.
Roberts said history is on the side of traditional marriage. "The institution developed to serve purposes that, by their nature, didn't include homosexual couples," he said.
Theodore B. Olson represented two couples challenging Proposition 8. "It walls off gays and lesbians from marriage, the most important relation in life, thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal and not OK," he said.