Law
4:56 pm
Tue March 26, 2013

Supreme Court Likely To Duck Any Major Decision In Proposition 8 Case

Originally published on Wed March 27, 2013 5:58 pm

Transcript

AUDIE CORNISH, HOST:

For some analysis now, we turn to Tom Goldstein, publisher and regular contributor to the website SCOTUSblog. He followed the arguments today and joins us in our studio. Welcome, Tom.

TOM GOLDSTEIN: Hi, there.

CORNISH: So we just heard right out of the gate, the justices are questioning whether the defenders of Proposition 8 even had the standing or authority to be there, to be in court. What did this signal to you?

GOLDSTEIN: Well, they might well start with a question like that for purely technical reasons. Every federal judge is supposed to decide if they have the power to decide a case. But here, it means more than that because there are really real questions in the odd situation where the state of California won't even defend this provision of its constitution of how it is that somebody is trying to get a federal court ruling on it.

But it goes beyond that because it sounded like today, as the report indicated, that the justices may be looking for a way out of the case. If they can't get five votes to decide the merits - if, for example, Justice Kennedy doesn't want to decide whether Proposition 8 is constitutional, they may need another ground to resolve it and that might be that they just don't have the power to resolve the case at all.

CORNISH: Now, Justice Kennedy is probably the most closely watched on this issue. What interested you or surprised you about his line of questioning today?

GOLDSTEIN: Well, all eyes and ears were on him. This case probably tears Justice Kennedy in half. He's the intellectual leader of some decisions of the Supreme Court, over the past decade or so, that have really given great hope to gay rights advocates, because he has been part of a majority in the Court striking down laws that were said to discriminate against homosexuals.

On the other hand, he's a solid conservative. And for a conservative, saying that the definition of marriage as between a man and a woman is unconstitutional is kind of a wild proposition. And so, I think that we were all waiting to see whether he was on board with the idea of the claims of this case, that you can't have that traditional definition; that there has to be marriage equality, in essence. And he was unwilling to do that.

And he was not willing necessarily to uphold Proposition 8, but he thought it was too early in the midst of this sea change in society for the Supreme Court to kind of put down a post, a flag, and say: Here's the definitive answer.

CORNISH: Now, a lot have been made of the fact that the specifics of the California case, specifically, leave open the possibility for the justices to rule very narrowly, in a way that would only affect the state. But did you hear anything today in the questioning that indicates how broadly the Court would be inclined to rule, I mean, one way or another?

GOLDSTEIN: It didn't seem like the justices were that interested in a theory that would say, well, just California has to recognize same-sex marriage. Or that the eight states that also recognize a civil union, they have to recognize same-sex marriage. There wasn't much appetite for that.

Instead, the justices seemed to be on common ground, and there weren't a lot of things that they agreed upon. But they seem to agree that this was a pretty all-or-nothing proposition, this right either exists or it doesn't and it'll apply to all the states, if and when it's recognized.

CORNISH: Now, with so many justices suggesting so many ways of deciding the case or not, I mean how do you think this is most likely to play out?

GOLDSTEIN: I think in the end, while it's difficult to predict from oral arguments - and everyone who paid attention to the health care case last year will remember that incredibly well, and it's so important to caution everyone about that. I think in the end, that the Supreme Court is going to end up ducking this one way or the other.

As we discussed at the beginning, they'll say that nobody in this case had the power to bring the appeal to them. And so, somebody else should try later in two, three, four or five years. Or the Court will just be so splintered that there won't be one decision. You can have four members of the Court saying, I want to uphold Proposition 8 and say there is no right to marriage equality to same-sex marriage here; that the traditional definition is fine. And four justices - the more liberal justices - saying no, this violates the Constitution. This right has to be recognized. And Justice Kennedy saying, look, I don't think we can get into this question now.

So, there are multiple paths. But I didn't see a majority of the Court that was willing to say, here are five of us. We are going to decide that the U.S. Constitution means that if you are a same-sex couple, you have a constitutional right to get married in this country. Or that five members of the Court were willing to turn around and say the opposite.

There is another case before the Court tomorrow, the Defense of Marriage Act case, and that may end up being the more significant case when it comes to the future of gay rights for the next five or 10 years in the federal judiciary.

CORNISH: That's Tom Goldstein of SCOTUSblog. Thank you for coming in.

GOLDSTEIN: Thanks so much.

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