Marriage @ the Supreme Court: What happened in the Prop 8 argument?

by on March 26, 2013  •  In Constitutional law, Marriage, Supreme Court
Prop8 SCOTUS Cop Crowd

The Supreme Court Justices hearing the Prop 8 case this morning were all over the place.  I have posted at TheNation.com an elaboration of why the best word to describe the argument is fractured. To see if you agree with me, you can read the transcript for yourself, and listen to the argument as well. 

By far the most dominant topic during the argument was standing, whether the Prop 8 defenders could step into the role of the state officials who declined to defend the provision when it was challenged. Justice Kennedy initially seemed less troubled than several other Justices by the standing question and more concerned that the decision by California voters could die by default unless the Court allowed the groups that organized the campaign to pass Prop 8 were allowed to undertake its legal defense.

Late in the argument, however, he raised an even more fundamental question: whether the Court should have granted review in the first place, since gay marriage raises issues about children that constitute, in his view, “uncharted waters,” and the Ninth Circuit Court of Appeals decision was “very narrow” with “an odd rationale.”

It would be highly unusual, though not unprecedented, for the Court to conclude after briefing and argument that review was “improvidently granted.” Such a result would require five Justices, and actually killing the case on those grounds seems like a long shot.  When Justice Sotomayor noted that the Court let issues of racial segregation percolate for 50 years, so taking a pass on a gay marriage dispute that is only four years old sounded sensible, Justice Scalia sought to cut off the exit option. “It’s too late,” Scalia said; “we’ve crossed that river.”  

My own prediction: it is at least quite possible that there will be no majority opinion of the Court. With a sharply divided Court, as this one is on multiple issues, that non-result happens with some frequency.  What does “no majority” mean?  If no single opinion is signed by at least five Justices, there is no precedent established that binds all other courts. For example, three Justices (Ginsburg, Sotomayor, Kagan?) may conclude that Prop 8 is unconstitutional, and two additional Justices (Kennedy, Breyer?) might conclude that the Prop 8 defenders lack standing or that the decision to grant cert should be reversed. Even if the largest number (four) of Justices on any one opinion agree that there is standing and that Prop 8 should be upheld, there would no one binding opinion.

The outcome in that kind of split would leave the trial court’s ruling that Prop 8 is in place, because there would be no majority to reverse.  The marriage litigation wars would continue with virtually nothing having been decided.

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5 Responses to Marriage @ the Supreme Court: What happened in the Prop 8 argument?

  1. Art Leonard March 26, 2013 at 10:16 PM

    Nan, there is gay rights precedent for a dismissal of cert as improvidently granted, issued after briefing and argument. See New York v. Uplinger (1983)! (A Lambda case!!)

  2. Ruth Colker March 27, 2013 at 6:45 AM

    I thought the most interesting subtle issue was that Kennedy asked Cooper early in the argument whether the Court should consider the issue one of gender discrimination. Cooper said “no,” but only by reference (that was also inaccurate) about how other courts had considered the issue, using a sexual orientation discrimination perspective. But, then, throughout his argument, Cooper referred to the problem with Prop 8 as creating “genderless” marriage, playing into a gender discrimination perspective. And his so-called legal analysis kept mentioning how same-sex couples were not “similarly situated” to opposite sex couples with respect to their ability to procreate (and apparently even have sex outside of marriage, which I found bizarre). So, in a sense, he actually invited a gender discrimination perspective. Do you think anyone might pick up on the case as one of gender discrimination?

    • Nan Hunter March 29, 2013 at 9:47 AM

      I think it is quite possible that sex discrimination will figure into an opinion, possibly if Justice Ginsburg writes separately, although probably not likely that it will control the reasoning. As more time passes, though, the Justices might become more open to this doctrinal vehicle for resolving the issues.

  3. Jerrfy house March 27, 2013 at 6:55 AM

    The decision to overturn Prop Eight was a very important one. Leaving it in place should not be construed as “nothing has been decided”. New marriage would be in place for another five years or so in that state, with another 100,000 or so legal marriages.

  4. Pingback: DOMA Case Analysis And Arguments: A Lesbian Love-In Small Screen Celluloid Moment | The New Civil Rights Movement

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