SCOTUS Justices Hinting They Will Avoid Issuing a Broad Ruling Legalizing or Banning Same-Sex Marriage

prop 8

This morning the Supreme Court held oral arguments on the challenge to California’s Proposition 8 ban on same-sex marriage. At Business Insider, Eric Fuchs writes:

The first of two huge Supreme Court cases on gay marriage may be heading for a partial victory for supporters of the movement.

SCOTUS won’t uphold or strike down Prop 8,” SCOTUSblog’s Tom Goldstein predicted over twitter after the Tuesday hearing was over.

So what does that mean, and why would that be a partial victory for gay marriage advocates?

The hearing involved California’s voter-approved ban on gay marriage, known as Proposition 8, which was struck down by a federal judge and an appeals court. When California declined to defend the law, it was backed by a coalition of anti-gay marriage advocates and elevated to the Supreme Court.

The Supreme Court could decline to issue a ruling at all, however, by finding the anti-gay marriage advocates don’t have legal “standing” to defend the law.

If that happens, then the appeals court ruling would stand and gays could continue to get married in California.

You can listen to the oral arguments and/or read the transcript at The Washington Post.

I can’t say I’d be surprised if the justices punt this one. I know that the Scalia clique would love to ban same-sex marriage, but they probably couldn’t get the votes; and even if they did, they have to realize that the blowback from the public would be horrendous.

At Reuters, Lawrence Hurley and David Ingram report that the Court is “wary of a broad gay marriage ruling,” and if don’t do that in the Prop 8 case, they’ll essentially be kicking the can down the road.

The narrower DOMA case does not give the court the same opportunity to issue a broad ruling because the case relates only to a federal law that limits the definition of marriage to opposite-sex couples for the purposes of federal benefits.

Only the California Proposition 8 case gave the court the option of finding a constitutional right for same-sex couples to marry. Polls show growing support among Americans for gay marriage.

But during the argument, Justice Anthony Kennedy, who is considered a swing vote, raised concerns about the court entering “uncharted waters” on an issue that divides the states.

Kennedy even raised the prospect of the court dismissing the case, a relatively unusual move that would leave intact a federal appeals court ruling that had earlier struck down the California law, known as Proposition 8.

In a similar vein, Justice Samuel Alito also urged caution, noting that gay marriage, as a concept, is “newer than cellphones and the Internet.”

None of the justices indicated support for the Obama administration’s favored solution, which would strike down Proposition 8 and require the eight states that already recognize civil unions or domestic partnerships to allow gays and lesbians to marry.

Early this morning, CBS news listed five possible outcomes in the case, but at NBC Pete Williams thinks it’s “quite obvious that

the U.S. Supreme Court is not prepared to issue any kind of sweeping ruling” declaring that same-sex couples have a constitutional right to marry.”

Williams said there seemed to be “very little eagerness” from any of the justices to “embrace that broad a ruling.”

Sadly, this is not the Warren Court; but if they allow marriage equality to be legal in California, it’s at least step in the right direction. What I don’t know is whether that would suggest the justices don’t want to overturn the lower court decisions that DOMA is unconstitutional I have no idea.


Finally, from SCOTUS blog, Amy Howe gives her take on what will happen “in plain English.”

After more than an hour of oral arguments this morning in Hollingsworth v. Perry, the challenge to the constitutionality of California’s ban on same-sex marriage, it came down to this:  attorney Charles Cooper, representing the proponents of that ban, Proposition 8, returned to the lectern for his ten minutes of rebuttal time.  He immediately confronted a question from Justice Anthony Kennedy, whom many regard as the critical vote in this case.  Kennedy told him bluntly to “address why you think we should take and decide this case.”  And with that, the Justice may have confirmed that the real question before the Court is not whether it would strike down Proposition 8, or what the broader effect of such a decision might be, but whether it is going to reach the merits of the case at all – a prospect that would be (to say the least) anticlimactic but seemed to be a real possibility by the end of the morning.

At the beginning of the argument, Cooper was only a sentence or two into his argument on the constitutionality of Proposition 8 before he was interrupted by the Chief Justice, who asked him to address the question that the Court had added to the proceedings:  whether Cooper’s clients have a legal right – known as “standing” – to be in the case at all.  Cooper then faced a barrage of questions from the Chief Justice and the Court’s four more liberal Justices which strongly suggested that, in their view, the proponents do not.  Has the Court ever allowed proponents of ballot initiatives to defend the initiatives in court, asked Justice Ruth Bader Ginsburg?  No, Cooper conceded, it had not.  When Cooper emphasized that state law had assigned the responsibility to defend the initiative to the proponents, Justice Elena Kagan asked whether the state could assign that responsibility to any citizen, or only to the proponents.  And Justice Sonia Sotomayor asked Cooper to explain what kind of injury – required for standing in federal courts – the proponents of Proposition 8 have suffered due to the failure by California officials to enforce the initiative.

On the question of the proponents’ standing, three of the four conservative Justices – Scalia, Kennedy, and Alito – who chimed in appeared inclined to find that the proponents did have a right to defend the initiative in court.  Justice Scalia, for example, asked Cooper a friendly question, noting that although (like the proponents) the Attorney General of California does not have any actual interest in seeing that the law is enforced, state law still says that she can defend it.  And later on, when attorney Ted Olson – representing the two same-sex couples challenging Proposition 8 – told the Court that the state can’t create standing by designating whoever it wants to defend the law, Justice Kennedy expressed concern that Olson’s position would give the state a “one-way ratchet” that would allow state officials to block initiatives that they don’t like.

But Chief Justice John Roberts responded, suggesting to Ted Olson – in what could be interpreted as a blueprint for a future challenge to Proposition 8 – that even if the proponents lacked the right to defend the initiative, a state official who doesn’t want to perform same-sex marriage would have such a right.

I’ll let you read the rest at the link. There are several other interesting posts there as well.

So….. What do you think? What are you hearing?

34 Comments on “SCOTUS Justices Hinting They Will Avoid Issuing a Broad Ruling Legalizing or Banning Same-Sex Marriage”

  1. bostonboomer says:

    HuffPo: Prop 8 Lawyer Basically Concedes Gay Marriage Foes Will Lose In Long Term

    During oral arguments, Charles J. Cooper referred twice to voters hitting the “pause button” to “await additional information from the jurisdictions where this experiment is still maturing” before making a decision on same-sex marriage.

    Cooper’s point seemed to be that although same-sex marriage may eventually become the law of the land, the Supreme Court shouldn’t speed up that process. He said it wouldn’t have been irrational for a California voter to support Proposition 8 in 2008 in order to observe how the gay marriage “experiment” worked out first in other states.

    Referring to a decision in a lower court, Cooper said it was “accepted truth” that things were “changing rapidly in this country as people throughout the country engage in an earnest debate over whether the age-old definition of marriage should be changed to include same-sex couples.”

    • dakinikat says:

      The men of SCOTUS appear to be too chickenshit to do anything resembling the right thing to do. This particular court will go down in history as being populated by bigots and religious nuts posing as lawyers/judges.

      • bostonboomer says:

        They’re so out of the mainstream, it’s ridiculous.

      • ANonOMouse says:

        Remember, we, the dreaded gay, have “Hell-bound” tatooed right in the middle of our foreheads. If the god-fearing let us marry we might screw up the sanctity of the most sacred civil contract of marriage, or even worse, we might keep the heterosexual from procreation. It’s just too damned dangerous to society!!!!

      • RalphB says:

        Chickenshit would appear to be the operative term. They should strike this damn thing down since they agreed to hear the case. Standing should have been determined before acceptance.

      • ANonOMouse says:

        I can hear their chicken clucking from here!!!!

      • bostonboomer says:

        Honestly, Anthony Kennedy is the worst. Has there ever been such a wimpy, wishy-washy judge?

  2. janicen says:

    I understand the point that the SCOTUS punting could mean a de facto victory for same sex marriage advocates, but it sure feels like the right decision for them and the decision they would make if forced would be to rule against the Prop 8 proponents and they just don’t want to do that. They just don’t want to make a ruling that would make marriage a constitutional right. That’s what it feels like to me and I’m not happy about it. I can only hope that Hillary runs in 2016 so that we get another 8 years to try to stack the Court.

    • RalphB says:

      The so-called “conservatives” on the court would probably like to uphold the ban but can’t get the votes, so they’ll try to force nothing as an alternative.

      Yes please for 2016.

  3. RalphB says:

    I have paid little attention today but does anyone know if any of the participants in the oral arguments happened to mention Equal Protection as under the 14th Amndt?

    As an aside, how can they dismiss this case when they have a legal injury which should be addressed concerning the children of same sex couples? Doesn’t seem right to me.

    • bostonboomer says:

      The issue of children’s wishes and needs was brought up. I haven’t listened to the whole thing, but I heard some of it on NPR.

      • RalphB says:

        About Kennedy, he appears to be a weathervane without much intellectual or moral compass. A veritable roulette wheel of a judge.

    • roofingbird says:

      Briefly on page 37-38 of the transcript:

      from the right to get married -JUSTICE
      …SCALIA: You — you’ve led me right into a question I was going to ask. The California Supreme Court decides what the law is. That’s what we decide, right? We don’t prescribe law for the future. We — we decide what the law is. 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?…

    • roofingbird says:

      A lot of time was spent discussing whether the proponents of Prop 8 had standing to the Court and whether they represented the State of CA. Since Prop 8 was passed and was law the Justices expressed the idea that either the State should argue against the law, or the proponents should show how they would be injured if it was overturned. There was a lot of the same old flusterbusting on that one.

      I get the idea that without a Federal Law as guide, the Justices are going to let the States work this out.

      Same old shit. Without passage of the ERA, women are more equal in some states than others. Without the ERA, LGBT’s will continue to be more equal in some states than others.

  4. bostonboomer says:

    Obama appointed a woman to head the Secret Service

    • RalphB says:

      That should help clean up the mess caused by some testosterone poisoned agents.

    • HT says:

      Interesting that the article you linked to stops with “Nancy Pelosi 2007 to name a few” and fails to mention Hilary Clinton. Very interesting.

      • bostonboomer says:

        I just posted the first link I could find, sorry. I’m not sure why they mentioned Tailhook. I don’t think things have changed much since then–doesn’t USA today know about all the rapes in the military?

      • HT says:

        Don’t be sorry, it’s not your fault that the so called journalist is a partisan cretin. Tailhook was the most publicized, so ergo in their minds it must be the apex. Everything else has gotten better since then because look at ……. Cretins the bunch of them. We have the same problem here in the RCMP with the women finally coming out – yet it’s again being swept under the carpet. It’s only women after all, and look we have 17% of the legislature being female. 17% – in a country where over 51% are female and that’s something we should be proud of when our female law enforcement officers are being harassed and raped? Same with the army here. JMHO of course, we are much better than other cultures yet why did we get stalled in the 60’s. We’re barely out of pearls and twin sweater sets culture and stuck there with the exception of a few token women.

      • bostonboomer says:

        Very well said, HT.

  5. bostonboomer says:

    Tweet from SCOTUSblog:

    SCOTUSblog @SCOTUSblog
    Lots of #prop8 interest. 600k hits on SCOTUSblog today. 2x the main health care oral arg day. Thanks so much for visiting and following.

  6. bostonboomer says:

    Montana’s John Tester is a brave man. He just came out in favor of gay marriage.

    • HT says:

      Good for him especially as he’s not facing re-election and can speak his mind freely. (some sarcasm there however I understand the polemics that are necessary – politicians eww. Equal rights, meaning that it’s equal and between two consenting capable adult humans. As PET stated back in 1967 – ” “The state has no place in the bedrooms of the nation.”
      BTW, that should also refer to birth control and abortion. Women are adults, can read, study and gasp, make decisions. Sorry, Prop 8 decision should be a no brainer.

  7. RalphB says:

    Dear Scalia: YOLO Behold: Photos of the wildest meeting of subcultures since whenever the last Coachella was.

  8. bostonboomer says:

    An armed bank robbery in Cyprus: