The oral argument in the Proposition 8 case is an important reminder that the Supreme Court deals in nuance and what lay people derisively call “technicalities.” The court doesn’t answer questions like “Isn’t it only fair to let gays marry?” In the case before it, the court has to decide whether the parties, which no longer include the state of California, have a real legal dispute which they have standing to bring to the court. And beyond that, the justices must decide, if they dismiss it, what their reasoning would be. If they hear the case, it isn’t clear whether the issue would involve federal law or the Constitution, as opposed to a reading of the state constitution.
After Obamacare’s oral argument, I am not about to predict how the court will rule, but I will point out a few key arguments.
Justice Kennedy was as perplexed as I was about why the court took this particular case, given the concerns about standing. It is hardly a clean issue on the merits. It is a bit surprising that the other conservative justices weren’t equally quizzical about this point. The legal concept of “standing” is a crucial restraint on the court’s power to go roving through the statutes, giving what amounts to advisory opinions.
If the case fails to reach a final decision on this basis, then the justices who pushed for a hearing on this got out ahead of the court and rashly tried to grab a case that was not properly ripe for the court’s decision-making. In any event, if there is no standing, then both the Supreme Court and 9th Circuit (striking down Prop. 8) decisions are impermissible. That may leave Prop. 8 in place, although there is no doubt another referendum endorsing same-sex marriage would pass easily.
Alternatively, if the court decides the case was “improvidently granted” (meaning that the court can’t decide the case or discovered it didn’t match up to the reasons for granting cert.), then the 9th Circuit decision remains.
Having the court not decide the Prop. 8 case would certainly be better for gay marriage proponents than deciding against same-sex marriage, because that would place gay marriage back in the hands of Californians, who are overwhelmingly favorable toward same-sex marriage. Strategically, it would signal a misstep for same-sex marriage proponents — raising hopes and bringing the case prematurely to the Supreme Court — but not disastrous.
The dean of Supreme Court reporters, Lyle Denniston, comments on the potential for a national decision:
“This would either be a decision that same-sex couples do have an equal right to get married, or the opposite — it is not unconstitutional to confine marriage to a man and a woman. At least some of the more liberal members of the Court seemed prepared to find it irrational to exclude gays and lesbians from marriage, and at least three of the more conservative members seemed determined to vote to protect the traditional definition — but neither had an apparent majority, although Kennedy wondered if the Court should dive into those ‘uncharted waters.’ ”
It was quite clear that the court’s conservatives had wanted the case to be reviewed because of their dislike for the ruling by the 9th Circuit striking down Prop. 8. But a decision by a controlling number of justices to end the case as “improvidently granted” would be a way to avoid an even more widely splintered decision that might settle nothing at all of constitutional consequence on marriage.
A final note: The Obama administration submitted a poorly reasoned brief arguing that once states (eight of them) granted same-sex couples the right to enter into civil unions, they also had to grant them the right to marry. Not a single justice seemed interested in that, and it remains a mystery why the administration didn’t simply go the whole nine yards and argue that there is a 14th Amendment right for gay couples to marry.
The case tomorrow, which looks at whether DOMA can deny benefits to a married same-sex couple in a state that has already granted same-sex couples the right to marry, raises both the 14th Amendment and a 10th Amendment issue. Once again, we may see just how differently from pundits and advocates is the court’s approach to judging.