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The Supreme Court Is Fractured on Prop 8 | The Nation

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Nan Hunter

Nan Hunter

Sexuality and gender: What’s law got to do with it?

The Supreme Court Is Fractured on Prop 8


(AP Photo/J. Scott Applewhite)

The Supreme Court argument in the California gay marriage case in a word: fractured. The Justices steered arguments back and forth between standing questions (whether a private group of Prop 8 proponents could assume the mantle of state officials to defend Prop 8) and the constitutional merits: whether it is permissible for a state to deny gay couples access to marriage. Toward the end of the argument, things got even more fractured, as Justices debated with the lawyers and among themselves whether unconstitutionality was an all or nothing proposition, or whether, paradoxically, only states like California that have extended all marital rights except the label itself would be forced to go all the way to full equality, leaving for another day the question of whether states that offer no legal protection were acting constitutionally.

The argument had lasted less than a minute before Chief Justice Roberts directed Charles Cooper, arguing in defense of Prop 8, to address the standing question first, a sequence that the Chief imposed on each attorney. By the end, several Justices appeared skeptical at best over whether their decision should reach the merits. Others, including Justices Kennedy and Alito, appeared to be more concerned that failing to find standing would allow state office holders to kill a law they disagreed with by not defending it. The only point of law during the entire argument that seemed to command wide agreement was that standing was “a close question.”

On the merits, Justice Ginsburg pointedly noted that the lower-court opinion in this case required a ruling only as to California, but Justice Keenedy, whose opinion in a 1996 gay rights case was the basis for the Court of Appeals’ reasoning, called it “an odd rationale,” and none of the Justices seemed likely to use it as a starting point. Justice Sotomayor asked almost plaintively at one point, “Can this case be decided in a way limited to California?” In general, there were few surprises in the suggestions of the Justices’ likely leanings.

As for the swing Justice, Kennedy, he seemed to waver during the argument. He initially seemed less troubled than several other Justices by the standing question and more concerned that the decision by California voters could die by default unless the Court allowed the groups that organized the campaign to pass Prop 8 were allowed to undertake its legal defense. Late in the argument, however, he raised an even more fundamental question: whether the Court should have granted review in the first place, since gay marriage raises issues about children that constitute, in his view, “uncharted waters,” referring to the argument that gay marriage is too new an institution for the Court to be certain that a decision mandating it would be prudent. and the decision by the Court of Appeals for the Ninth Circuit was “very narrow” with “an odd rationale.”

It would be highly unusual, though not unprecedented, for the Court to conclude after briefing and argument that review was “improvidently granted.” Such a result would require five Justices, and actually killing the case on those grounds seems like a long shot. When Justice Sotomayor noted that the Court let issues of racial segregation percolate for fifty years, so taking a pass on a gay marriage dispute that is only four years old sounded sensible, Justice Scalia sought to cut off the exit option. “It’s too late,” Scalia said; “we’ve crossed that river.”

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My own prediction: it is at least quite possible that there will be no majority opinion of the Court. With a sharply divided Court, as this one is on multiple issues, that non-result happens with some frequency. What does “no majority” mean? If no single opinion is signed by at least five Justices, there is no precedent established that binds all other courts. For example, three Justices (Ginsburg, Sotomayor, Kagan?) may conclude that Prop 8 is unconstitutional, and two additional Justices (Kennedy, Breyer?) might conclude that the Prop 8 defenders lack standing or that the decision to grant cert should be reversed. Even if the largest number (four) of Justices on any one opinion agree that there is standing and that Prop 8 should be upheld, there would no one binding opinion.

The outcome in that kind of split would leave the trial court’s ruling on Prop 8 in place, because there would be no majority to reverse. The marriage litigation wars would continue with virtually nothing having been decided.

Editor’s Note: Stay tuned for more coverage from Nan Hunter on the Supreme Court arguments, and check out her primer on the Prop 8 case for backround.

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