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.