Oral arguments give
observers plenty of clues
The nine justices who will decide whether same sex-marriage should be allowed in the United States. Photo by Steve Petteway, staff photographer of the U.S. Supreme Court.
IT MAY BE FOLLY to even try to predict the outcome of a case before the U.S. Supreme Court, but the recent oral arguments on two gay marriage cases – including California’s Proposition 8 – were sufficiently revealing to take a stab at it.
Informed observers are reaching a consensus: the Court will punt on Hollingsworth vs. Perry (the Proposition 8 case), leaving the decision of the Ninth Circuit in place and restoring same sex marriage rights in California. And, it will strike down the federal Defense of Marriage Act.
In an insightful front-page analysis on March 2, David Savage of the Los Angeles Times suggests that rapid changes in public opinion could sway the two key justices – Anthony Kennedy and John Roberts – who are seen as essential in forming a majority in Hollingsworth.
“PUBLIC OPINION on marriage for gay and lesbian couples has shifted with almost unprecedented speed since California voters banned such unions in 2008,” Savage writes.
But, he adds, experience with abortion and capital punishment in the 1970s has made the court cautious; it doesn’t want to get ahead of public opinion.
“Better to move in line with — or just slightly ahead of — shifting opinion,” Savage says the nine justices believe.
Savage then suggests that because of their caution, the Court may adopt the approach suggested in the Obama administration’s brief, what he calls an “eight state” solution: since seven states plus California have already given same-sex couples full legal rights, the Court could order them to allow gay marriage, bringing the total to 17 states where it is recognized.
The remaining states would be able to decide on their own timetable when and whether to grant similar rights.
Associate Justice Anthony Kennedy.
BUT, THERE IS a slightly narrower option. One of the main issues addressed in oral arguments on March 26 was the standing of plaintiffs, the supporters of Proposition 8, who were forced to take over the case when then-Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown declined to defend it in court.
The Ninth Circuit asked the California Supreme Court to rule on whether the new plaintiffs had the right to proceed with the case, and on Nov. 17, 2011 the state’s Supreme Court ruled that, indeed, Proposition 8 proponents have legal standing as “plaintiff interveners” to defend what was then Perry v. Brown.
But that doesn’t mean the U.S. Supreme Court must agree. It often overturns lower court rulings.
In this case, it appears that it might. It would be the easiest way out of an issue that the Court seems uncomfortable deciding, right now, for the entire nation.
Of particular note were Associate Justice Anthony Kennedy’s questions during the oral arguments.
“I just wonder if the case was properly granted,” Kennedy was reported as saying in The New York Times. What he’s getting at is the legal standing of the plaintiffs.
Even liberal Justice Ruth Bader Ginsburg followed the same line of questioning. “Have we ever granted standing to proponents of ballot initiatives?” she asked.
In the U.S. vs. Windsor case (the attempt to overturn the federal Defense Of Marriage Act), the justice’s questions were similarly revealing.
Again, Justice Kennedy is seen as the key vote. He focused on whether interfering with marriage rights is truly the province of the federal government. “The question is whether or not the federal government, under our federalism scheme, has the authority to regulate marriage,” he asked.
He was establishing a conservative basis for tossing out DOMA on state’s rights grounds.
The liberal justices focused on the rational basis and uniform standards aspects of whether DOMA is constitutional under the Fourteenth Amendment’s equal protection clause. Precedent requires that the defendant (usually, but not in this case, the U.S. government; it is the Bipartisan Legal Advisory Group, a standing committee of the House of Representatives) show that laws challenged under the equal protection clause have a “compelling state interest,” and several justices questioned whether DOMA does have one.
In its earlier opinion striking down DOMA, the Second Circuit Court of Appeals noted that, according to the Congressional Record, the Act was necessitated by the need to make marriage laws uniform throughout the country. Justice Ruth Bader Ginsburg made mincemeat out of this with her widely quoted remark: “You’re saying there are two kinds of marriage: the full marriage, and this this sort of skim milk marriage.”
It’s not rocket science to see where these oral arguments are leading.
If Las Vegas bookies were taking bets, the smart money would wager that the Court denies standing to the plaintiffs in Holligsworth, and declares DOMA unconstitutional in a 5-4 decision, with Justice Kennedy concurring separately.
Decisions in both cases are expected in June.
This is a condensed version of Chapter 10 of a special study project completed for and submitted to CSU Fullerton for credit during the Spring 2013 semester. The full analysis runs 15,000 words.