Will the Supreme Court Dodge a Decision on Gay Marriage?



Supreme Court of the United States

Tom Goldstein at the SCOTUSBlog believes that there is not a majority to make a decision on the merits of the Proposition 8 case where oral arguments were heard today.

The bottom line, in my opinion, is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.

Goldstein believes that the court may decide that those defending Proposition 8 lack the standing to do so.  He believes the court could rule one of two ways.

First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing.  That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8.  Another case with different petitioners (perhaps a government official who did not want to administer a same-sex marriage) could come to the Supreme Court within two to three years, if the Justices were willing to hear it.

Second, the Court may dismiss the case because of an inability to reach a majority.   Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him.  Others on the left may agree.  That ruling would leave in place the Ninth Circuit’s decision.

Ed Whalen at NRO’s Bench Memos believes that the argument that the Proposition 8 proponents lack standing is flawed.  He also states that if this argument is to be applied to SCOTUS it needs to be applied all the way back to the original district court ruling.

A ruling that Prop 8 proponents lack standing would mean that the Ninth Circuit also didn’t have jurisdiction. Further, as UC Davis law professor Vikram Amar (a former Blackmun clerk and not a conservative) and I both discussed two years ago, a ruling that Prop 8 proponents lack standing may also compel the conclusion that the district-court proceedings lacked the adverseness needed under Article III—and that Judge Walker’s judgment should therefore be vacated in its entirety. Now that would be a fitting conclusion. Indeed, for the reasons I spell out in my amicus brief, that result would be the proper one whether or not it is compelled.

Goldstein believes it will be a modest step forward for gay marriage advocates with either of the scenarios presented.

While I would have preferred to not have this issue addressed by any court at all; dodging a decision on the merits of the Proposition 8 case is troubling unless they were to vacate the original district court proceeding.  While that particular decision would not impact other states’ laws and constitutional amendments.  It would mean that the voters of California no longer have the right to enact their will through constitutional amendment referendums.  Instead they can be vetoed by their legislature and by the courts.

That is not a road we really want to go down.

Photo by Tamara Evans via Flickr (CC-By-NC-SA 2.0)

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  • Pete

    This is a road we are going down… 54% of American’s think gay marriage should be legal and that number is growing every year! Even if it’s not in 2013, it is only a matter of (short) time!

    It’s funny your whole post is based on one person’s opinion- how hard did you have to search to find a site that shares your opinion? Most sites I have read (and these are from news sources across the board, are predicting it to be a 6-3 decision that forces state and federal recognition of same-sex marriage.

    • http://shanevanderhart.com/ Shane Vander Hart

      Sure I could find liberal blogs that say that too. SCOTUSBlog is pretty non-partisan and respected.

    • tony4516

      Yeah, the only way to get your so called same sexual marriage is to go through the courts! EVERY time this issue goes before the people it gets voted DOWN! Blacks in California voted it down by 70%, hispanics voted it down by 54%. The Supreme Court will not allow it in a 5-4 decision.

      • http://twitter.com/boywonder3919 Mike Rasor

        In 2012 Maine, Washington and Maryland held referendums on the issue and the voters approved same sex marriage so it has not been “every time.” Further more than half the jurisdictions in the united states which provide for same-sex marriage have done so without judicial intervention. Additionally, of the 31 states that ban same-sex marriage, 27 did so prior to 2007 (2 in 1998; 1 in 2000; 2 in 2002; 13 in 2004; 2 in 2005; 7 in 2006). Given that all major polling shows a rather fast change in public opinion on the matter, it is somewhat problematic to rely on votes taken in the past to serve as an expression of current or future voter opinion.

      • http://www.facebook.com/jeff.klinzman Jeff Klinzman

        You’re on the losing side of history, Tony. Interracial marriage was “imposed” on the segregationsit South by the Supreme Court’s 1967 Loving v. Virginia decision. You going to gripe about THAT?

  • http://www.facebook.com/jeff.klinzman Jeff Klinzman

    DOMA is dead: the Supreme Court will have a hard time finding constitutionally-permissible reasons to single out gays and lesbians who have been legally married in the states which allows same-sex marriage for exclusion from federal benefits. Thanks to the kind of “christians” represented by Scott Roeder and Operation Rescue (my juxtaposition is deliberate), the Court may be reluctant to repeat Roe v. Wade on this issue. It’s undemocratic to put the rights of a minority group up for a vote, as recognized in the Federalist Papers, and it is necessarily the role of the courts to protect against a tyranny of the majority, which is the only polite way to describe the plebiscites, in accordance to Karl Rove’s strategy of using social wedge issues, which drove pro-Republican voters to the polls. Look at the 2012 results: same-sex marriage won in each of the four states where it was put to a popular viote.
    What I find most fascinating is the seeming fragility of christian doctrine which is inadvertently revealed by the religious right. Is opposition to same-sex marraige, and oppostion to LGBT civil rights, really the core of christian belief?

  • Billiam

    Prop 8 should stand, as that’s a State issue. Of course, SCOTUS found a “right” to murder the unborn in some bs penumbra in the Constitution, so, nothing would surprise me.