Justice Anthony Kennedy, seen as a swing vote between the four liberal and four conservative justices, suggested that children of same-sex marriages would suffer an “immediate legal injury” under the ban.
“There are some 40,000 children in California, according to the Red [State] Brief, that live with same-sex parents, and they want their parents to have full recognition and full status,” said Kennedy.
But Kennedy also said the court is being asked to head “into unchartered waters” because they have “only five years of information to pose against 2,000 years of history.”
The justices may be eager to dismiss the appeal on jurisdictional grounds to avoid any sweeping ruling on the issue.
Kennedy raised concerns about whether the possible legalization of same-sex marriage was enough to establish that those in favor of the ban could suffer harm. If no harm can be proven, it would allow the justices to dismiss the appeal without any ruling at all.
“I just wondered if the case was property granted,” said Kennedy.
If the court dismisses the appeal, it may mean lower federal court rulings declaring Proposition 8 unconstitutional would stand in California.