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What will the Court do with Proposition 8? Today’s oral argument 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.

Eventually the discussion shifted over to the question that has been the focus of the case:  whether Proposition 8’s ban on same-sex marriage is constitutional.  Here too, however, it became clear that a decision from the Court on that question is hardly a sure thing.  At first, questions from the four more liberal Justices left little doubt that they would vote to strike down Proposition 8.  Responding to Cooper’s argument that the state’s interest in “responsible procreation” justifies limiting marriage to opposite-sex couples, Justice Kagan asked him to identify the potential harms that would occur if same-sex couples were allowed to marry.  And Justice Stephen Breyer pressed him to explain how allowing same-sex couples to marry would be different from allowing opposite-sex couples who cannot have children to marry; Justice Ginsburg later noted that opposite-sex couples in prison were allowed to marry, even though there was no possibility of procreation.

At the same time, comments and questions by the Chief Justice, Justice Scalia, and Justice Alito seemed to place them solidly in support of Proposition 8.  (Justice Thomas as usual did not ask any questions, but he presumably provides a fourth vote for that view.)  And there was no sign that any Justice was interested in deciding the case based on the reasoning suggested by the United States – that it violates the Constitution for California (and seven other states) to offer the rights and responsibilities of marriage to same-sex couples through domestic partnerships but prohibit them from actually getting married.

That left, as it so often does, Justice Kennedy as the critical vote in the case.  On the one hand, he expressed concern about the forty-thousand-plus children living with their same-sex parents in California, emphasizing that they want their parents to be recognized as married and asking Cooper whether the voices of those children are “important.”  On the other hand, he noted that sociological information about the effect of same-sex marriage on children, for example, was still relatively new, and he complained that the lower court’s decision effectively “penalized” California, which had been fairly generous in providing rights to same-sex couples through domestic partnerships, for not going far enough and allowing them to marry.  And later he told Ted Olson that Olson was asking the Court to enter “uncharted waters in a case with a very narrow decision” and a “substantial question” regarding whether the case could proceed at all.

Taking those comments by Justice Kennedy to heart, some of the more liberal Justices seemed to shift their focus during Cooper’s rebuttal.  Thus, for example, Justice Sonia Sotomayor echoed Kennedy’s comments to Cooper; she asked him to explain why, if the proponents are urging the Court to allow the states to experiment with same-sex marriage – the solution is for the Court to decide the Proposition 8 case now.  After all, she told Cooper, the Court allowed the issue of racial segregation to play out in the country for decades before finally stepping in.

Given the shifting alliances on view at the Court today, and the overall lack of enthusiasm on the part of some Justices for deciding the case on the merits, the Justices’ Conference later this week – at which they will vote on the case – promises to be an interesting one.  Will at least five Justices join forces to hold that the proponents lack the right to defend the initiative at all?  Will they instead decide that even if the proponents have that right, the time is not right to decide the merits of the case?  Or will they go ahead and reach the merits after all?

Depending on the answers to those questions, the case could proceed in several different directions.  If at least six Justices conclude that now is not the right time to rule on the constitutionality of Proposition 8, they could “DIG” the case – dismiss it as improvidently granted.  If that happened, the lower court’s ruling striking down Proposition 8 would stand, but it would have no real significance outside of California.  Getting to that result would almost certainly require the Chief Justice to join forces with Justices Kennedy, Ginsburg, Breyer, and Sotomayor; nothing that we heard today provided any reason to believe that Justices Scalia, Thomas, or Alito would vote to dismiss the case.  In this scenario, Proposition 8 would be invalid, but another lawsuit – for example, brought by a Californian who opposed same-sex marriage – could eventually follow and reach the Court at a later date.

If the Justices do decide the case, they could vote in any number of ways, and so it’s hard to predict how the case will play out:  the Court could ultimately rule that Proposition 8 is invalid (for a variety of different reasons), or it could hold that the proponents lack the right to defend the initiative but set the stage for a new challenge later on.  Or they could surprise us all and simply send the case back to the lower courts for those courts to weigh in based on the Court’s decision in United States v. Windsor, the challenge to the constitutionality of the federal Defense of Marriage Act, in which it will hear arguments tomorrow.  But in all events, it is difficult to count five votes in support of an opinion that reverses the court of appeals outright and holds that Proposition 8 is constitutional; Justice Kennedy seemed to be looking for a strategy to avoid that result.

The one thing we can be sure of, however, is that when the Justices finally let the rest of us know how they plan to resolve the case (or not), we’ll be back to report on it in Plain English.

Recommended Citation: Amy Howe, What will the Court do with Proposition 8? Today’s oral argument in Plain English, SCOTUSblog (Mar. 26, 2013, 2:19 PM),