The oral argument just concluded.  The audio will be posted later.  UpdateAudio is here. Transcript is here.

Expect an avalanche of spin from various pundits — as if the spin matters.

I’ll link to numerous sources which I deem on the low-end of spin meter.  Beware predictions.  Who guessed how Chief Justice Roberts would end up on the Obamacare case.

A blow-by blow account is at the Wall Street Journals Live Blog: Supreme Court Weighs Gay Marriage.

To give you an feel for the ups and downs and perils of predictions, here are SCOTUSblog’s tweets during the oral argument:

Twitter - @Scotusblog - Marriage Oral Argument tweets

Tom Goldstein from SCOTUSblog has his post-argument reaction:

… The bottom line, in my opinion, is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.

Several Justices seriously doubt whether the petitioners defending Proposition 8 have “standing” to appeal the district court ruling invalidating the measure.  These likely include not only more liberal members but also the Chief Justice.  If standing is lacking, the Court would vacate the Ninth Circuit’s decision.

The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy.  For the more liberal members of the Court, there was no clarity on how broadly they would rule.

But Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail.  He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new.  He also noted the doubts about the petitioners’ standing.  So his suggestion was that the case should be dismissed.

Goldstein suggests that if the supporters of Prop 8 have no standing to defend the law, the 9th Circuit had no jurisdiction, but the District Court decision declaring Prop 8 unconstitutional still stands. [See Update below] I’m not seeing that last point. If there is no standing then there arguably was no federal jurisdiction also at the District Court level.  The standing issue was addressed in an earlier post about the 9th Circuit.  If I’m wrong on that, I’ll update.

Ed Whelan, who filed a brief in the case, reaches a similar conclusion:

A ruling that Prop 8 proponents lack standing would mean that the Ninth Circuit also didn’t have jurisdiction. Further, as UC Davis law professor Vikram Amar (a former Blackmun clerk and not a conservative) and I both discussed two years ago, a ruling that Prop 8 proponents lack standing may also compel the conclusion that the district-court proceedings lacked the adverseness needed under Article III—and that Judge Walker’s judgment should therefore be vacated in its entirety.

Interesting exchange via Volokh:

JUSTICE SCALIA: I’m curious, when -­ when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. When do you think it became
unconstitutional? Has it always been unconstitutional? . . .

MR. OLSON: It was constitutional when we -­as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -­

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.

Update 3-27-2013: In a new post Goldstein elaborates on the effect of a lack of standing on the District Court, arguing that the invalidation of Prop 8 would survive but only as to the actual parties in the case, leaving it unclear whether the ruling applies to others:

There is only one question on which it seemed five Justices might agree: the judgment should be vacated because the petitioners lack standing. The Chief Justice and the four more liberal members of the Court indicated their sympathy for that position. If they vote that way, the Ninth Circuit’s decision striking down Proposition 8 will be vacated – wiped from the books – but U.S. District Judge Vaughn Walker’s judgment invalidating Proposition 8 would remain unaffected. That district court ruling would apply to the parties in the case. There would be additional litigation about whether and how Proposition 8 would be applied elsewhere.

I’m still not seeing that nuance, but it would at least render the District Court opinion relatively meaningless as a general striking down of Prop 8.