Supreme Evasions, Serious Consequences

So after the Supreme Court’s oral arguments in the Prop 8 case this morning, the general consensus is that Anthony Kennedy, astride a sharply divided Court, will tilt the decision towards one of not-on-the-merits directions that will have moderately positive consequences for same-sex marriage. One involves a denial of “standing” to the plaintiffs (backers of Prop 8) to appeal the district court’s decision to strike down Prop 8 on broad constitutional grounds (because the State of California did not choose to appeal it). The other involves essentially reversing the Court’s decision to take the case, which would leave in place the Court of Appeals ruling striking down Prop 8 in California but not affecting gay marriage bans elsewhere.

The legal beagles of SCOTUSblog seem to differ on the actual effect of a denial of standing, with Tom Goldstein assuming it would leave the district court’s sweeping decision in place (which does not, however, have anything remotely like the precedential value of a Supreme Court decision), while Lyle Denniston thinks it could lead to a secondary fight:

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.

Additionally, a “standing” ruling could mean the case could come right back up the judicial ladder if brought by a public official (i.e., a state or local magistrate in California) affected by the invalidation of Prop 8.

The idea that the Court could deny standing but then vacate both rulings against Prop 8 is the only path anyone seems to see that would make the decision an actual victory (and even then, temporary and technical) for marriage equality opponents.

I gather from some email traffic that there are Court-watchers attentive to Kennedy’s language during oral arguments who think he will in fact create a 5-4 (or less likely, 6-3, with the Chief Justice going along) decision striking down Prop 8 on constitutional grounds. But this is all speculation until the Court hands down its ruling at the end of this term.

Meanwhile, the Court will hear oral arguments tomorrow in a very different case that will nonetheless be lumped together with this one in the MSM: a challenge to the constitutionality of the Defense of Marriage Act, which mainly affects federal benefits for same-sex couples legally married.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.