Reflections on Today's Proposition 8 Oral Arguments

Predicting how an appellate court will rule is never an easy task.  One need only look at the Affordable Health Care Act ruling that upheld the Act's constitutionality via a surprise vote by Chief Justice Roberts.  Most had predicted that the Court would strike down the Act.  With today's oral arguments in Hollingsworth v. Perry there once again is a great deal of prognostication going on.  One thing that does seem likely is that the Court will not hand down a broad ruling finding a nationwide right to same sex marriage.  The issue of "standing" is very real as this blog has focused upon in the past.  Thus, the Court may punt on the matter, find lack of standing and allow gay marriage to return to California as a result.  But, if this is the case, especially in light of marriage equality strides in other nations, then by ducking the constitutional issue and allowing anti-gay bigotry to continue to exist in 30+ states, the Court will have proven that (i) America is no longer to be counted among progressive modern nations, (ii) America's claims of being the" land of liberty" and equality and freedom are, in fact, a fraud and a lie, (iii) LGBT Americans simply do not have equality under the civil laws, and (iv) hate filled Christofascists still receive special rights and will, therefore, continue to strut around feeling superior and better about themselves because the "faggots" are still legally inferior in most of America.  

There are numerous blog posts and articles that provide a blow by blow account of today's arguments (e.g., Andrew Sullivan, The Advocate, etc.), but are highlights from two overview articles on SCOTUS Blog:

Supreme Court Justice Anthony M. Kennedy, in an unusually candid process of elimination of options in public, on Tuesday worked his way through the ways for dealing with California’s Proposition 8 ban on same-sex marriage and seemed strongly tempted to just take a pass.   He appeared to be troubled about the Court entering “uncharted waters,” on the core issue of who may marry, but at the same time, he also did not look comfortable with any of the other, more limited options.  So he openly wondered why the Court had agreed even to hear this case.

Focusing on Kennedy, although that is often the closest one can come to anticipating outcomes on a divided Court, was an even more reliable approach this time given that the other eight Justices were so clearly split: four friendly to same-sex marriage as a constitutional matter, three hostile to it — and, in the end, likely to attract a fourth to that view.

If the Justices, in the initial vote they will take on this case in private later this week, do not find themselves with a majority on any of the issues they canvassed, then they might well be looking for a way out.  One way would be to find that the proponents of Proposition 8 did not have a legal right to be in court to defend it, but even that was a hotly disputed issue on the bench.  The other way out was directly suggested by Kennedy, and pursued by him in more than a fleeting way: dismiss this case as one that should not have been accepted.  A decision like that, though, could take weeks or months to reach.

Should that be the outcome, it would be a huge let-down for political, legal and cultural warriors on both sides of the gay marriage issue, but would have the effect of leaving the issue to be worked out in state legislative halls and at the ballot box, one state at a time, at least for the time being.  

It was quite clear that the Court’s conservatives had wanted the case to be reviewed, because of their dislike for the ruling by the Ninth Circuit Court striking down Proposition 8.  But a decision by a controlling number of Justices to end the case as “improvidently granted” would be a way to avoid an even more widely splintered decision that might settle nothing at all of constitutional consequence on marriage.

The overall possible result?  Very likely more bigotry by conservatives and cowardice by the liberals - something that seems to be the norm.  Meanwhile, Canada, much of Europe, Argentina, much of Mexico and Brazil and South Africa are the real beacons of freedom and liberty.  Here are highlights from a second SCOTUS Blog article:

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.

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 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.

We will not know what the result will be most likely until June.  Meanwhile, the boyfriend tells me to stay optimistic.    Personally, I am left discouraged and in some ways find myself once again wishing my circumstances were different so that I could leave America for good.   As for the "godly Christian" crowd, my contempt for these people continues to grow exponentially.