Analysis

Supreme Court Justice Anthony M. Kennedy, in an unusually candid process of elimination of options in public, on Tuesday worked his way through the ways for dealing with California’s Proposition 8 ban on same-sex marriage and seemed strongly tempted to just take a pass.   He appeared to be troubled about the Court entering “uncharted waters,” on the core issue of who may marry, but at the same time, he also did not look comfortable with any of the other, more limited options.  So he openly wondered why the Court had agreed even to hear this case.

Focusing on Kennedy, although that is often the closest one can come to anticipating outcomes on a divided Court, was an even more reliable approach this time given that the other eight Justices were so clearly split: four friendly to same-sex marriage as a constitutional matter, three hostile to it — and, in the end, likely to attract a fourth to that view.

If the Justices, in the initial vote they will take on this case in private later this week, do not find themselves with a majority on any of the issues they canvassed, then they might well be looking for a way out.  One way would be to find that the proponents of Proposition 8 did not have a legal right to be in court to defend it, but even that was a hotly disputed issue on the bench.  The other way out was directly suggested by Kennedy, and pursued by him in more than a fleeting way: dismiss this case as one that should not have been accepted.  A decision like that, though, could take weeks or months to reach.

Should that be the outcome, it would be a huge let-down for political, legal, and cultural warriors on both sides of the gay marriage issue, but would have the effect of leaving the issue to be worked out in state legislative halls and at the ballot box, one state at a time, at least for the time being.  The case argued Tuesday — Hollingsworth v. Perry (12-144) — was only the first of two, but it is the one that had the most potential for getting to the question of who may marry.

Wednesday’s argument, the case of United States v. Windsor (12-307), involves same-sex couples who are already legally married, and the issue before the Court is whether the federal government can legally deny them all of the federal benefits that go with marriage.  But a decision in that case might not resolve the basic issue of equal access to marriage.

Here was the range of options the Court was facing in the Proposition 8 case, and how the Justices reacted to each on Tuesday:

** The nationwide solution.   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.”

** The eight-state solution.  This would mean that the eight states (there will soon be a ninth) that do not allow same-sex marriage but allow gay and lesbian couples all of the other benefits of marriage must open marriage to them as a matter of equality.  That view, proposed by the Obama administration, seemed to find no takers.  Some Justices sharply criticized the idea as one to punish states that already were moving toward more tolerant treatment of homosexuals.  It was not clear that this approach could attract a single vote.

** The California-only solution.  This would mean that the Golden State alone would be affected, with a finding that it could not take away same-sex marriage after once having allowed it, as it did before Proposition 8.  Justice Kennedy was especially critical of that approach, saying it was a way of “penalizing” California for doing a lot toward gay and lesbian equality, but not enough.

** The jurisdictional solution.   This would mean that the Court would find that the sponsors of Proposition 8 had no legal right to be in court to defend it, because they do not have “standing” under the Constitution’s Article III.  (If the Court were to find “standing,” then it would move on to one of the options for dealing with the fate of Proposition 8.)  There clearly was no consensus whatever on this issue, and the exchanges on it were sharply divergent.

As Kennedy openly reacted to these proposals, he seemed to be losing patience, and well into the argument said “there is a question whether this case was properly granted” — that is, was it a mistake for the Court to accept the Hollingsworth appeal for review.   The lawyers at the lectern said it was a proper case that had been fully litigated, but Kennedy did not drop the idea.

Although that possibility did not pick up definite support across the bench, the fact that Kennedy was ready to consider it seriously may have been all that counted.  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 Ninth Circuit Court striking down Proposition 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.

The legal consequences of avoiding a ruling on the constitutionality of Proposition 8 would vary sharply, depending upon the route the Court chose to that outcome.  If the case were dismissed on the theory that the grant of review was a mistake, that would mean that the Ninth Circuit’s California-only decision would become final and fully effective, that court would remove the temporary order blocking marriages, and same-sex couples could resume getting married in the state.

In that event, the Circuit Court decision would not have the Supreme Court’s specific approval, so it would not mean anything beyond California because no other state that has allowed same-sex marriage has taken it away, and that is all that the Circuit Court found to be unconstitutional.  For the time being, nothing would happen in the Supreme Court on the constitutionality of denying gays and lesbians a right to marry.

If, however, a majority of the Court were to conclude that the backers of Proposition 8 did not have “standing” under Article III to pursue their appeal to the Supreme Court, it almost certainly would mean that they also lacked the right to have pursued an appeal to the Ninth Circuit.  As a result, the Circuit Court’s California-only decision would itself be wiped out.  It would then become an issue, likely to be hard fought, on whether the District Court ruling striking down Proposition 8 on broader grounds would be reinstated, or not.  The Supreme Court probably would not have decided the fate of the District Court ruling in finding a lack of “standing” for the proponents before the Justices.

The flow and apparent direction of Tuesday’s argument could have an impact on the way Wednesday’s argument goes on the federal Defense of Marriage Act.   In that case, a Harvard law professor selected by the Court to do so will be making an argument that the Justices should not decide that case at all, on the theory that neither the Justice Department nor the Republican leaders of the House of Representatives had a right to take that case to the Court.

The professor, Vicki C. Jackson, may have a more difficult time putting over an argument for the Court to pass up a ruling on that case, too.  The Court might wind up looking quite evasive if it decided not to decide on Proposition 8, and then took an escape route away from deciding the fate of DOMA, too.

Moreover, a decision against the federal government’s right to pursue a case to the Supreme Court, after it had won its point in the lower courts, would be a more historic and perhaps constitutionally more restrictive decision than simply finding in the Proposition 8 case that the sponsors of a ballot measure cannot pursue an appeal when state officials won’t defend a state law.

The wariness that Justice Kennedy showed on Tuesday about reaching the foundation question of an equal right to marry will not be necessary in the DOMA case, since that is not at issue.  Kennedy, who at several points on Tuesday showed his usual concern about interfering with the sovereign choices that state governments make, might well make some of the same points on Wednesday as the Court weighs the impact of a move by Congress to give marriage a federal definition, even though regulation of marriage has long been a special prerogative of the states.

Wednesday’s argument will be watched closely to see whether Kennedy, and perhaps others, are more inclined to decide the fate of DOMA based upon a states’ rights rationale than on a right of equal protection for married same-sex couples seeking federal benefits.  DOMA might fall on either rationale, of course.  Of course, the House GOP leaders, in their capacity as the majority members of the Bipartisan Legal Advisory Group of the House defending DOMA, will be arguing that Congress clearly has the authority to define marriage for federal purposes, without intruding on states’ rights.

 

Posted in Hollingsworth v. Perry, Featured, Same-Sex Marriage

Recommended Citation: Lyle Denniston, Argument recap: On marriage, Kennedy in control, SCOTUSblog (Mar. 26, 2013, 12:31 PM), http://www.scotusblog.com/2013/03/argument-recap-on-marriage-kennedy-in-control/