SCOTUS Justices Hinting They Will Avoid Issuing a Broad Ruling Legalizing or Banning Same-Sex MarriagePosted: March 26, 2013
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.
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?