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I just left the Supreme Court: here’s my first take on the Justices’ questions March 26, By Combs UPDATE 2 (12:55.): Addressing the merits of the case and arguing against Prop 8′s constitutionality, Olson repeatedly told the Court that marriage is a personal individual and a fundamental right, and that procreation is not a part of that right. Prop 8, he said, excludes and lesbian Californians from that right. Chief Justice Roberts jumped in early, throwing cold water on the idea that Prop 8 ‘excludes’ gays from marriage and instead saying that marriage developed historiy for reasons that unions do not forward (., procreation). The Chief Justice and Olson got into a bit of a weedy debate about whether the Prop 8 case would be different if the law had been passed before the California Supreme Court extended marriage rights to same-sex couples, with Roberts saying that if the timing had been different, Olson wouldn’t be arguing that Prop 8 excluded gays and lesbians from marriage. Olson reiterated his point that marriage is a fundamental right, and said that while the argument in that case would be subtly different, it would still rely on the central question of whether the fundamental right to can be withheld. Scalia asked Olson, “When did it become institutional to exclude gays from marriage?” Olson gamely responded, “When did it become unconstitutional to exclude interracial couples from marriage?” Scalia testily pressed Olson for a specific date, which Olson refused to provide. Kennedy in particular seemed very skeptical of the Ninth Circuit’s narrow argument striking down Prop 8 specifiy in light of California’s unique history of marriage equality. He characterized that decision as one that said that a state could only go all the way to full marriage equality as opposed to only going part way and providing some rights. FULL STORY:

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