Today, the Supreme Court heard oral argument in Hollingsworth v. Perry, the case challenging the Constitutionality of California’a Proposition 8, and by time time argument was over many were left with the impression that the Justices were looking for a way to rule narrowly on the case:
As the Supreme Court on Tuesday weighed the very meaning of marriage, several justices seemed to have developed a case of buyer’s remorse about the case before them. Some wondered aloud if the court had moved too fast to address whether gay and lesbian couples have a constitutional right to marry.
“I just wonder if this case was properly granted,” said Justice Anthony M. Kennedy, who probably holds the decisive vote.
Justice Sonia Sotomayor said there may be value in letting states continue to experiment. “Why is taking a case now the answer?” she asked.
Addressing the merits of the case during the first of two days of arguments on same-sex marriage, Justice Kennedy voiced sympathy for the children of gay and lesbian couples.
“There’s some 40,000 children in California that live with same-sex parents,” he said, as the justices debated the state’s Proposition 8, which banned same-sex marriage. “They want their parents to have full recognition and full status. The voice of those children is important.”
But Justice Kennedy also spoke of uncertainty about the consequences for society of allowing same-sex marriage. “We have five years of information to pose against 2,000 years of history or more,” he said, speaking of the long history of traditional marriage and the brief experience allowing gay men and lesbians to marry in some states.
Justice Samuel A. Alito Jr. said the court should not move too fast.
“You want us to step in and assess the effects of this institution, which is newer than cellphones and/or the Internet?” he said.
Many of the questions directed to Charles J. Cooper, a lawyer for opponents of same-sex marriage, concerned whether there was any good reason to exclude same-sex couples from the institution.
Justice Elena Kagan, for instance, asked how letting gay and lesbian couples marry harmed traditional marriages. “How does this cause and effect work?” she asked.
Mr. Cooper said that “the state’s interest and society’s interest in what we have framed as ‘responsible procreation’ is vital.”
Theodore B. Olson, representing the ban’s challengers, said California’s ban on same-sex marriage “walls off gays and lesbians from marriage, the most important relationship in life.”
Several justices also challenged the notion that procreation was the key to the state’s interest in marriage. Justice Stephen G. Breyer asked Mr. Cooper about sterile opposite-sex couples. “There are lots of people who get married who can’t have children,” he said.
Justice Kagan raised the question of a man and a woman over 55 years old seeking to get married, despite the fact that they would not be able to have children. Mr. Cooper agreed that the court could not constitutionally ban such marriages, but returned to the hazards of a “redefinition” of marriage.
Justice Antonin Scalia remarked wryly, “I suppose we could have a questionnaire at the marriage desk asking, ‘Are you fertile?’” When Justice Kagan noted that people were frequently asked about their age by the government, Justice Scalia joked about Senator Strom Thurmond, who fathered in his 70s and served in the Senate until age 100.
Mr. Cooper avoided a direct attack on same-sex marriage, which has rapidly gained public support in recent years. Instead, he argued that there was already under way a lively, democratic debate over “the age-old definition of marriage” and suggested that the court should not interrupt it. The court should not, he said, “put a stop to this democratic debate” over what he called “an agonizingly difficult issue.”
There was also an extended discussion of a preliminary issue: whether the plaintiffs in the case actually have legal standing to challenge the state court ruling that overturned Proposition 8, the ballot initiative banning same-sex marriage.
Seconds into the morning hearing, as Mr. Cooper began his argument, Chief Justice John G. Roberts Jr. cut him off and asked him to address the standing issue. It could prove a crucial question, since the court could decide that they have no standing and effectively leave in place a state ruling striking down the same-sex marriage ban.
Mr. Olson said that the plaintiffs did not have standing. But his main argument was that Proposition 8 “walls off gays and lesbians from marriage,” which both sides in the case recognize as a fundamentally important institution. Mr. Olson said that a ban on same-sex marriage would have the effect of “labeling their most sacred relationship” as “not O.K.
As I noted during the Obamacare cases, trying to draw conclusions about what a Court might do from oral argument is often a mistake. Sometimes, Justices ask questions for the purpose of testing some portion of the legal theories behind the case. Sometimes, indeed quite often I’d suggest from my own experiences, they are playing “devil’s advocate,” asking a question that they don’t necessarily agree with in order to elicit from counsel an idea of just how far their legal theory could be stretched. Sometimes, they’re using the questions to engage in some intellectual sparring with one of their fellow Justices. Before any of these cases are argued in open court, these Justices and their clerk’s have read hundreds (if not thousands) of pages of legal briefs from the parties to the case, the Solicitor General if his/her opinion has been requested, and outside groups that may have filed amicus briefs. It’s usually the case that most Justices will have walked into the Courtroom that day with at least some indication in their mind of which way they are leaning in the case. Oral argument can influence that opinion, but it’s hardly the chief influence. Finally, as we learned just last year, after the arguments are over and the Justices are writing their opinions, someone can change their mind and send the case off in an entirely different direction from the one that seemed apparent after oral argument was over. For these reasons, it’s best to take all this analysis of what happened in Court today with a grain of salt.
Over at SCOTUSBlog, Tom Goldstein seems to think that the fate of the Proposition 8 case is already clear:
Much will be written about the Proposition 8 oral argument. 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.
Several Justices seriously doubt whether the petitioners defending Proposition 8 have “standing” to appeal the district court ruling invalidating the measure. These likely include not only more liberal members but also the Chief Justice. If standing is lacking, the Court would vacate the Ninth Circuit’s decision.
The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy. For the more liberal members of the Court, there was no clarity on how broadly they would rule.
But Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail. He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new. He also noted the doubts about the petitioners’ standing. So his suggestion was that the case should be dismissed.
If those features of the oral argument hold up – and I think they will – then the Court’s ruling will take one of two forms. 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.
The effect of this type of decision would be that Proposition 8 would be overturned and same-sex marriage would be legal in California. A tremendous development indeed considering that we’re talking about the nation’s most populous state, but a far cry from the full-throated endorsement of same-sex marriage as a Constitutional right that many advocates are hoping for. In the end, though, I would still say that it counts as a victory, especially if combined with a ruling that strikes down Section Three of DOMA, and the public movement toward greater acceptance of same-sex marriage would no doubt pick up steam as a result. At the same time, though, it seems as though Goldsteain is really going out on a limb here. Yes, it’s true that Kennedy was chief among those Justices expressing doubts about whether the parties defending Proposition 8 had standing to pursue the appeal, but we don’t know what might happen behind closed doors between now and June. It’s entirely possible that Kennedy could be persuaded to join the Court’s liberal wing in a broader decision, although I think it’s unlikely we’d see a ruling with nationwide implications.
Goldstein’s colleague Lyle Denniston has more observations about Kennedy’s comments and what they might mean:
The legal consequences of avoiding a ruling on the constitutionality of Proposition 8 would vary sharply, depending upon the route the Court chose to that outcome. If the case were dismissed on the theory that the grant of review was a mistake, that would mean that the Ninth Circuit’s California-only decision would become final and fully effective, that court would remove the temporary order blocking marriages, and same-sex couples could resume getting married in the state.
In that event, the Circuit Court decision would not have the Supreme Court’s specific approval, so it would not mean anything beyond California because no other state that has allowed same-sex marriage has taken it away, and that is all that the Circuit Court found to be unconstitutional. For the time being, nothing would happen in the Supreme Court on the constitutionality of denying gays and lesbians a right to marry.
If, however, a majority of the Court were to conclude that the backers of Proposition 8 did not have “standing” under Article III to pursue their appeal to the Supreme Court, it almost certainly would mean that they also lacked the right to have pursued an appeal to the Ninth Circuit. As a result, the Circuit Court’s California-only decision would itself be wiped out. It would then become an issue, likely to be hard fought, on whether the District Court ruling striking down Proposition 8 on broader grounds would be reinstated, or not. The Supreme Court probably would not have decided the fate of the District Court ruling in finding a lack of “standing” for the proponents before the Justices.
As I’ve noted before, the District Court’s ruling in this case was far broader than the 9th Circuit’s. It attacked the entire idea of laws against same-sex marriage, finding them a violation of the Equal Protection Clause of the 14th Amendment on the ground that there is no rational basis to exclude gays and lesbians from getting married. While Judge Walker’s opinion would not have any force or effect outside of California, it would be the final ruling in the case and would undoubtedly be cited as persuasive precedent in cases brought in other states against their bans on same-sex marriage. In that respect, a ruling on standing that lets the District Court ruling stand as the final word could end up being just as radical as the far reaching decision that same-sex marriage advocates want from the Court.
Some might wonder why the Court would essentially punt this case if it had already agreed to take it. After all, much time and energy could have been saved by simply refusing to take the appeal. The reason is that only four Justices are required to agree in order to take a case on appeal. We’ll never know which four Justices made the decision in this particular case, but when they did so they likely didn’t think that the standing issue was going to be a big deal. Now, presented with the job of trying to hammer out a majority, dismissing the case on standing grounds may be the best option they have. We’ll find out sometime in June.
If you want to listen to the oral arguments, you can do so via the Court’s website. Additionally, I’ve embedded a copy of the transcript below:
