The Washington Post

Early reaction suggests limited ruling on Prop 8

Oral arguments before the Supreme Court on California's constitutional ban on gay marriage have ended. What do they tell us about the fate of Proposition 8?

SCOTUSBlog's Tom Goldstein writes that "the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional."

No action would mean that same-sex marriages in California would likely resume, because an appeals court has already struck down the ban. The court could also find that since California officials have declined to defend Prop 8, the case is not properly before the Supreme Court. That would also leave the appeals court decision in effect.

Legal analyst Jeffrey Toobin wasn't sure what to think:

He elaborated on CNN, saying the court seemed to "almost be groping for an answer" and that it was "even harder to predict the result of this case after hearing this argument."

NBC News's Pete Williams said it was "quite obvious that the U.S. Supreme Court is not prepared to issue any kind of sweeping ruling" finding that gay couples have a constitutional right to marry. Several justices, he said, "seemed to be struggling to find a way to limit this case only to California" -- as either no ruling or a finding of no standing would.

Ted Olson, the lawyer representing the plaintiffs challenging Prop 8, told reporters shortly after oral arguments ended that "based upon the questions that the justices asked, I have no idea" how they will rule. His colleague David Boies noted that "there was no attempt to defend the ban on gay and lesbian marriage," a positive sign for their side.

Of course, interpretations of oral arguments are hazy at best. After oral arguments in last year's health-care case, many observers wrongly predicted that President Obama's landmark legislation would be ruled unconstitutional. We'll know the real answer by the end of June.

Rachel Weiner covers local politics for The Washington Post.

The Freddie Gray case

Please provide a valid email address.

You’re all set!

Campaign 2016 Email Updates

Please provide a valid email address.

You’re all set!

Get Zika news by email

Please provide a valid email address.

You’re all set!
Show Comments
The New Hampshire primary is Tuesday. Get caught up on the race.
New Hampshire primary: What to expect
New Hampshire will hold a traditional primary just eight days after the Iowa caucuses. Polling in the Granite state has historically been volatile in the final weeks before the primary. After the Iowa caucuses, many New Hampshire voters cement their opinions.
The Post's Ed O'Keefe says ...
Something has clicked for Bush in New Hampshire in the past few days. What has transpired by no means guarantees him a top-tier finish in Tuesday’s Republican primary here, but the crowds turning out to see him are bigger, his delivery on the stump is crisper and some of his key rivals have stumbled. At the least, the developments have mostly silenced talk of a hasty exit and skittish donors.
The feminist appeal may not be working for Clinton
In New Hampshire, Sen. Bernie Sanders is beating Clinton among women by eight percentage points, according to a new CNN-WMUR survey. This represents a big shift from the results last week in the Iowa caucuses, where Clinton won women by 11 points.
New Hampshire polling averages
Donald Trump holds a commanding lead in the next state to vote, but Marco Rubio has recently seen a jump in his support, according to polls.
New Hampshire polling averages
A victory in New Hampshire revitalized Hillary Clinton's demoralized campaign in 2008. But this time, she's trailing Bernie Sanders, from neighboring Vermont. She left the state Sunday to go to Flint, Mich., where a cost-saving decision led to poisonous levels of lead in the water of the poor, heavily black, rust-belt city. 
55% 40%
Upcoming debates
Feb. 11: Democratic debate

on PBS, in Wisconsin

Feb 13: GOP debate

on CBS News, in South Carolina

Feb. 25: GOP debate

on CNN, in Houston, Texas

Campaign 2016
State of the race

To keep reading, please enter your email address.

You’ll also receive from The Washington Post:
  • A free 6-week digital subscription
  • Our daily newsletter in your inbox

Please enter a valid email address

I have read and agree to the Terms of Service and Privacy Policy.

Please indicate agreement.

Thank you.

Check your inbox. We’ve sent an email explaining how to set up an account and activate your free digital subscription.