Court looks unprepared to make a sweeping decision for marriage equality

by Brian Leubitz

UPDATE: I have updated the post with the complete audio from the oral arguments. I also included some snips that the LA Times posted as well. You can select any of the clips to listen to it directly, or click down to the bottom to listen to the whole argument.

Any decision is still months away, but today’s oral argument did give some strong clues that the Court, and Justice Anthony Kennedy particularly, is not ready to make any big decisions one way or another. From Tom Goldstein at SCOTUSBlog:

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.

Any ruling would likely end up with the 9th Circuit’s decision being vacated and Judge Vaughn Walker’s District Court decision striking down Prop 8 as being the last word on this case. The practical effect of such a muddled ruling would be marriage equality in California, but the rest of the country having to wait a few more years.

Despite 58% of Americans supporting marriage equality is not enough, the Court has learned to be a bit timid on these dramatic issues. Perhaps there will be a case in a few years that eventually ends marriage discrimination in all 50 states, but it might not be this one. At any rate, the current dramatic upsurge in support for gay rights will eventually make this issue quaint. But for now, perhaps we’ll end up with a few more years of the fight.

Lyle Denniston, also at SCOTUSBlog, has a good recap of the argument.

Additional Links:

Curated Audio Explanation from Alliance for Justice

Tom Goldstein, SCOTUSBlog, Getting to five might be difficult

Kate Kendall, Executive Director of National Center for Lesbian Rights