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Prop 8 at the Supreme Court: what kind of ruling can we expect?

Marriage equality Prop 8 Prop 8 trial Supreme Court

By Jacob Combs

There is no way to open a post like this than with a big, big caveat: it is always unwise to read too much into oral arguments at the Supreme Court.  The Justices ask all kinds of questions as they gather information, debate ideas and plumb the weaknesses in both sides’ arguments on their way to conferring as a group and coming to a majority decision.  As I walked out of the press gallery and down towards the street, I overheard two reporters discussing their reactions.  At one point, one of them said something to the effect of, if you want to be fooled, take the Justices’ questions at face value.

Having said that, there’s already a bit of a conventional wisdom beginning to crystallize about what kind of a ruling we could expect by the end of June.  The definite consensus: don’t expect marriage equality to be a nationwide right this summer.  Also unlikely: a decision along the lines of the argument laid out both in briefs and oral arguments by Solicitor General Donald Verrilli, Jr. that the Court should restore equal marriage rights to California and also extend them to the other seven (soon to be eight) states with civil union or domestic partnership laws.

Where does that leave Prop 8?  The four more liberal Justices on the Court expressed deep skepticism for Charles Cooper’s arguments that Prop 8 could be defended as a rational governmental action, especially in light of California’s expansive quasi-marriage rights for same-sex couples.  The Court’s four conservative members (assuming Justice Thomas’s silence implies agreement with his right-leaning colleagues) did not appear to be anywhere near signing on to a legal opinion that would provide expanded marriage rights for same-sex couples in any state, California or otherwise.

And then there was Kennedy, the eternal swing vote, who admitted at one point during arguments that he is “wrestl[ing]” with the issue of marriage equality, especially whether such rights should be considered a “gender-based classification.”  (Most courts who have considered this issue have decided that marriage equality bans classify on the basis of sexual orientation and not sex.  But gender-based distinctions are already considered under heightened scrutiny, so Justice Kennedy may be exploring the many options available to him in regard to Prop 8 under established equal protection law as opposed to developing a new test for sexual orientation.)  Kennedy asked Cooper point blank at one point if he was conceding that he could point to any specific harms that would arise from allowing same-sex couples to marry.  Cooper couldn’t answer.

On the other hand, though, Justice Kennedy did say that the Court would be entering “uncharted waters” if it struck down Prop 8.  Ted Olson responded that the Court did exactly that when it ruled in 1967 that bans on interracial marriages were unconstitutional in the Loving v. Virginia case.  But, as Kennedy correctly pointed out, interracial marriage had been established in countries with common law before 1967.  Marriage equality, he said, is still new.

Perhaps most importantly, Kennedy did not seem persuaded at all by the Ninth Circuit’s California-specific ruling–a ruling that was likely written for his eyes and was based in large part on his seminal 1996 gay rights decision in Romer v. Evans.  Kennedy called the Ninth Circuit’s opinion “odd,” and the Justices as a whole seemed much more persuaded that whatever legal reasoning was adopted by the Court should be effective nationwide.

If Kennedy does end up becoming the swing vote (and writing the eventual opinion on Prop 8), he will likely continue to wrestle with his feeling that marriage equality bans hurt gays and lesbians–and their families–and his discomfort that the Court might make a policy decision for states without marriage equality in light of what he characterized today in court as early, inconclusive social science data about a practice that is still a little less than a decade old in the U.S.

That could mean Kennedy will end up crafting an opinion that finds a way to avoid the merits of Prop 8’s constitutionality.  He could do that by ruling that the proponents of Prop 8 do not have standing, or–as he seemed to entertain today–he could find that the Prop 8 case was improperly granted.  He explicitly asked both Ted Olson and Charles Cooper if the Supreme Court was correct to take up the Prop 8 case, and while both lawyers said it was, he seemed unconvinced, especially because it was the Ninth Circuit’s (in his word) “odd” decision before the Court and not the district court’s broader ruling of a fundamental right to marriage equality.

Intriguingly, that was not the only indication of who on the Court might have voted to grant certiorari in the Perry case for the Supreme Court to review the Ninth Circuit’s ruling.  As Justice Sotomayor said at one point, the Supreme Court “let racial segregation perk for 50 years,” to which Justice Scalia tartly replied, “It’s too late for that … now, isn’t it?  I mean, we granted cert.”  That might mean that the four more liberal Justices are content to let the Ninth Circuit or district court’s ruling(s) stand, returning marriage equality to California but holding off on addressing the more fundamental questions of equality under law.  If Justice Kennedy goes in search of four more votes for a ruling that returns equal marriage to California but makes no broader, precedential argument, the liberals might be amenable.  And if he can find a way to ease the conservatives’ fears that denying the proponents standing would not mean setting up a process for state executives to nullify the results of a ballot initiative, he may garner one or two of their votes as well.

Of course, only he knows if that is what indeed he’s looking for.


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