Supporters of marriage equality rally outside the Supreme Court as it considered Hollingsworth v. Perry, a challenge to California’s Proposition 8. (AP Photo/Paul Morigi.)
Friday at 10 am is the traditional conferencing time for the justices of the Supreme Court, and they are gathering this morning to preliminarily decide the outcomes of the cases in which they heard argument this week. These early outcomes can change; the result in Bowers v. Hardwick famously flipped from good to bad when Justice Lewis Powell reconsidered his vote over the weekend and changed sides. But the bottom line results in both the Prop 8 and DOMA cases may have been determined by the time you read this.
No decisions are announced, of course, until the opinions have been finalized, a lengthy process during which Justices continue to refine or even reverse their views. And it looks quite likely that there will be multiple opinions in these cases. There might be a shortcut, though, and it would imho be a happy one: The Prop 8 case could drop off the Justices’ workload very quickly, in a way that would leave in place the appeals court ruling that it is unconstitutional.
During oral argument in Hollingsworth v. Perry, Justice Kennedy wondered aloud whether the writ of certiorari should be dismissed as improvidently granted, an option that the Court occasionally utilizes when, after briefing and argument, it concludes that for some reason the particular case or question presented is not ready for prime time. A dismissal as improvidently granted (DIG) would mean that the Justices would not have to decide even the threshold standing issues in Perry, much less the constitutionality of any state laws. After Justice Kennedy’s comment, Justice Sotomayor seemed to buttress this possibility by expressing her own hesitation to force a decision on the constitutionality of marriage bans, especially for states other than California.
The backdrop for this is that it is now blazingly obvious that only the conservative Justices wanted to hear the case. That should come as no surprise, since they probably felt (and feel) reasonably confident that Justice Kennedy is not going to rule in 2013 that forty or so state marriage laws are unconstitutional, as the Perry lawyers have sought. A resounding defeat for gay marriage supporters in Perry is about the only thing that could slow down what seems like truly extraordinary momentum in public opinion, even if less so in state law, toward allowing gay couples to marry. Ultimately that bucket of cold water would be unlikely to affect more than speed, and might just make the Court itself seem out of tune with American culture. But it would not be a happy moment, to put it mildly.