[This post was originally published on The Living Room Tumblr.]
So, based on the questioning at oral argument, @SCOTUSblog believes the Supreme Court will likely punt on California’s Prop 8, because Justice Kennedy “thinks it is too soon to rule on #ssm.” This would mean the 9th Circuit decision striking down Prop 8 would remain in place [UPDATE: see clarification below], but there wouldn’t be a nationwide precedent establishing a constitutional right to same-sex marriage.
Breaking: 1st update- #prop8 unlikely to be upheld; either struck down or #scotus won’t decide case. More in 30 mins.
Breaking: key vote Kennedy VERY uncomfortable striking down #prop8. Suggests dismissing case. Would leave in place 9th Cir pro-#ssm ruling.
There are not 5 votes to strike down #prop8 and recognize equal right to #ssm at this time
Arguments done. #scotus won’t uphold or strike down #prop8 bc Kennedy thinks it is too soon to rule on #ssm. #prop8 will stay invalidated.
If the Court strikes down DOMA (that’ll be heard tomorrow, and was always the easier and likelier “win”) and punts on Prop 8 – but doesn’t establish a precedent reversing the 9th Circuit and upholding Prop 8 (which would be a disaster, and was my big fear about this case) – that outcome would be, although disappointing to those of us advocating full equality now, a decent compromise result in the final analysis. It would eliminate the festering unconstitutional boil of DOMA, and would allow continued incremental progress at the ballot box and in the state houses (and in the circuit courts, for that matter), while also opening the door for SCOTUS to review the broader question again in a few years, once the consensus is clearer.
(A “punt” would have the side effect of making the next few presidential elections even more important, of course, and making it harder for marriage equality advocates to consider voting Republican, even if they’re inclined to do so for fiscal or other reasons, because of Supreme Court appointments that could tip the scales on this issue the next time it comes up.)
Remember, fellow advocates of marriage equality, we are winning this issue democratically – and demographically. I do recognize the “fierce urgency of now,” and I know this is easy for me to say as a straight person in a heterosexual marriage that fully grants my rights. But we are winning this argument in the court of public opinion with stunning rapidity (just look at the polls, and the poll trend-line, and then look at the demographic crosstabs – the numbers among young people are overwhelming), and if SCOTUS strikes down DOMA, and doesn’t throw up a roadblock to that democratic progress, equality will prevail, and it will prevail soon.
As Andrew Sullivan might say, “Know Hope.” And, as he also might say, “Meep Meep.”
P.S. Having said all that, a lawyer #protip: trying to divine a court outcome from oral arguments is a tricky business. Stay tuned, as they say.
UPDATE: Speaking of Andrew Sullivan… for what it’s worth, the long-time and fervent advocate of marriage equality prefers the potential result that I’m discussing:
[M]y position on the cases in front of the court today and tomorrow is not a hope for a sudden 50-state Loving vs Virginia-style resolution. If I had my druthers, the perfect outcome would be dismissing the challenge to the ruling striking down Prop 8 on “standing” grounds, thereby allowing civil marriages to continue in California; striking down that part of DOMA which forbids the federal government from recognizing a state’s valid legal marriage licenses, on federalism grounds; and on heightened scrutiny grounds, striking down the “separate-but-equal” segregation of civil unions which are substantively identical to civil marriage.
The end result would be 17 states with marriage equality recognized by the feds, and the debate could then continue democratically as it should state by state.
One point of clarification. I said earlier that a “punt” would leave the Ninth Circuit decision in place, but that’s not necessarily true. The end result would be the same, sort of, but… well, I’ll let SCOTUSblog explain:
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. …
I think…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 upshot of either scenario is a modest step forward for gay rights advocates, but not a dramatic one. The Court would stay its hand for some time for society to develop its views further. But combined with a potentially significant ruling in the DOMA case being argued tomorrow, the Term will likely nonetheless end up as very significant to gay rights.
It’s a “modest step forward” if it’s combined with DOMA being overturned, which I believe it should and will be. If DOMA is upheld and the Court punts on Prop 8, that would be a bitter disappointment. It’s all about DOMA.