The dust has settled on the Prop 8 oral arguments and many have written and rewritten their predictions. Using oral arguments to predict a ruling from the United States Supreme Court is questionable, at best. Among other things, Justices tend to play devil’s advocate during oral arguments and therefore, the questions they pose do not necessarily reflect their own conclusions. However, it is a game everyone, in and out of the legal field, tends to play. The game is made even more difficult to navigate here where there are so many possible rulings.
I. Standing
The initial question in the Prop 8 case is standing. Generally, in order to have ‘standing’ to bring an action, a party must have a specific legal injury. Following the initial trial, where the District Court ruled that Prop. 8 was unconstitutional as a violation of the equal protection and due process rights of gay and lesbian Californians, the State of California declined to appeal the ruling. Afterward, a portion of the individuals who were responsible for getting Prop 8 on the ballot through the initiative process stepped in to appeal. The Ninth Circuit certified a question to the Supreme Court of California asking if the parties had standing to do so and the California Supreme Court answered in the affirmative. The Ninth Circuit then ruled that Prop 8 was unconstitutional as a violation of due process rights.
The proponents of Prop 8 maintain that because the State of California has standing to defend the law, it also has the authority to delegate defending it to a third-party. They also argue, in accordance with the California Supreme Court ruling, that failing to recognize standing of the people who placed the initiative on the ballot would thwart the entire initiative process. Justice Alito seemed to go along with this argument, noting the whole point of an initiative process was to allow people to circumvent public officials of whom they were suspicious. If the only people who could defend laws passed by initiative were public officials, then the whole purpose would be defeated. Justice Sotomayor voiced a similar concern.
Justices Ginsburg and Kagan were skeptical of the proponents’ standing. Ginsburg noted she understood their roles in getting an issue on the ballot, but questioned whether once the law passed, they held any more interest than any other member of the citizenry. Kagan asked whether the State of California could just delegate the authority to anyone to defend a law. When proponents’ counsel answered in the affirmative, Chief Justice Roberts interrupted, stating that such a scenario would make the standing requirement basically meaningless.
Justice Sotomayor noted the distinction between a State official, who inherently has a fiduciary duty to the State, defending a law and a general member of the citizenry who does not owe such a duty. Justice Scalia seemed to dismiss this concern, stating that the Attorney General does not have a ‘proprietary’ interest in a particular law but can generally defend it because the law provides him that authority. Presumably, Scalia was implying that proponents could do the same if the Court recognized California’s right to delegate such authority, but that implication is mere speculation and I would never deign to presume too much where Justice Scalia is concerned.
Chief Justice Roberts questioned the Court’s approach in assuming the State of California or the current Prop 8 proponents were the only two options for parties with standing. He specifically noted there may be people in California who are actually injured by the striking down of Prop 8 who could properly challenge it, perhaps people who perform marriages but who do not want to perform them for same-sex couples.
Justice Breyer’s inquiries were split. He described a strong argument in the briefing that proponents did not have any special interest beyond the rest of the citizenry and that they’re really nothing more than a few citizens who feel ‘really strongly’ the law should be enforced. He also noted that allowing the proponents to defend the law would introduce a ‘public action’ into the federal system, and there is nothing in the federal law providing for that. However, he questioned why, if the Court were inclined to find the State of California could delegate the authority to defend its laws, it couldn’t delegate said authority to the proponents. Justice Kennedy indicated that going through the initiative process to get an issue on the ballot may be sufficient to set proponents apart from the general citizenry and allow them standing. On a similar note, Scalia questioned the effectiveness of State officials, who did not want to defend a law, choosing those who would defend it.
II. Merits
The proponents’ primary arguments in favor of Prop 8 are two-fold. First, marriage is a gendered institution and the primary purpose of marriage is procreation. Second, same-sex marriage is too new to know the societal harms it may inflict. Their use of these two propositions is illustrated below.
Justice Kennedy asked proponents’ counsel whether the question could be treated as one of gender classification, indicating it was a question with which he had wrestled. Justice Sotomayor asked proponents’ counsel whether the government was ever justified in denying gays and lesbians other benefits, such as employment, or imposing burdens on them. When proponents’ counsel basically answered no, she asked why then shouldn’t they be treated as a class so that government had to meet certain standards in order to discriminate against them, and what made marriage different.
Proponents’ counsel answered that gays and lesbians do not meet the traditional tests for being treated as a class. He also argued that the question of whether the government can discriminate against them in other contexts, such as employment, is distinguishable from the Prop 8 case because in that situation, the government would be discriminating between similarly situated individuals as employees and probably based upon arbitrary and capricious reasons. In the context of marriage, however, gay couples and heterosexual couples are not similarly situated because heterosexual couples can procreate, while gay couples cannot. Proponents contend the State has an interest in regulating marriage and the purpose of marriage is procreation.
Justice Kagan then noted that might be a reason to not include them in marriage, but questioned a reason to exclude them. She explained that perhaps same-sex couple’s do not serve the State’s interest in procreation but asked if they somehow harm a State’s interest? This brought proponents’ counsel to his second primary argument, same-sex marriage is too new to know what societal effects may result and they propose that such effects could be adverse. When he failed to come up with a specific harm, but refused to concede there wasn’t one, Justice Scalia offered him an allegedly concrete harm, stating that there was “considerable disagreement among sociologists about whether” it was harmful to raise children in same-sex households. (Because this is so egregious, I will make an exception to my usual restraint from adding personal commentary to note, Justice Scalia’s statement is an absolute falsehood. Every national, professional psychological and medical association has expressly found, including the American Academy of Pediatrics as early as 2002, that there is no link between parents’ sexual orientation and a child’s emotional well-being).
On this note, Justice Ginsburg stated that the idea of societal harm resulting from same-sex couples raising children was irrelevant to proponents’ argument because California allows adoption by same-sex couples. Scalia countered that the opponents of Prop 8 were seeking a nation-wide ruling as well.
Justices Kagan and Breyer asked proponents’ counsel to explain why it did not violate the Constitution to prohibit gay people from getting married but it would be a violation to prevent infertile couples or people over the age of 55 from getting married. On the latter, Proponents’ counsel stated that it was rare for a male to outlive his fertility and that the societal norm of marriage imposes fidelity and monogamy upon a couple and therefore, would prevent irresponsible procreation by the male party in that marriage. As to the former, proponents’ counsel stated that allowing marriage to be a genderless institution shifts the focus away from procreation.
Chief Justice Roberts noted that through civil unions California gays and lesbians have every other state right heterosexual couples have so why should the State be required to change the definition as it’s just a label. Counsel for the opponents of Prop 8 countered that certain labels matter, such as “citizen.” He also argued that in cases such as Lawrence and Skinner, among others, the Court had held that marriage was a fundamental right based on privacy, intimacy, status and recognition, not just procreation, and all those things apply to same-sex couples.
Justice Scalia made it abundantly clear that he would not rule in favor of recognizing a constitutional right to marriage for same-sex couples, not that this was a surprise.
Kennedy, who most see as the possible swing vote, stated that he thought the Ninth Circuit’s ruling was based on an odd rationale. In all likelihood, opponents of Prop 8 found this statement more discouraging than any other because the 9th Circuit’s decision was based almost entirely on the rationale of Justice Kennedy’s opinion in Romer v. Evans, wherein the Court struck down a Constitutional amendment in Colorado that prohibited anti-discrimination protection of gay citizens in both the public and private sphere. In the Prop 8 arguments, though, Kennedy stated that applying that rationale would mean penalizing a State that had been generous in the rights it granted to gay couples.
Sotomayor brought up the slippery slope argument, asking whether it would be permissible then for a State to prohibit polygamy or set a minimum age at which one could get married. Prop 8 opponents responded that those regulations would pertain to conduct, while prohibiting same-sex marriage denies rights to people based on status, which is not constitutional.
Kennedy stated that he thought the opponents of Prop 8 were asking the court to enter into uncharted water with very little sociological evidence. Though he did not note that there was an immediate injury to the approximately 40,000 children in California who were being raised by same-sex couples and who wanted their parents to have full legal status. But he returned again to the ‘newness’ of gay marriage and questioned whether they should have granted certiorari in the case, especially given the standing issue and also noting that interracial marriage had been present for 100 years in common law countries before they decided Loving v. Virginia. Justice Alito stated that gay marriage was newer than cell phones and the internet. Justice Sotomayor joined this thinking, asking if there was any reason they had to decide this issue now when they let segregation percolate for over 50 years before they decided Brown v. Board of Education.
The Solicitor General also argued on behalf of President Obama’s administration that Prop 8 was a violation of equal protection because California gave all of the rights of marriage to same-sex couples, but denied them actual marriage. This would mean that the nine states that do not allow same-sex marriage but allow gay and lesbian couples all of the other benefits of marriage must open marriage to them as a matter of equality. The Justices sharply criticized this argument.
III. Possible Rulings
a. Dismissing as Improvidently Granted. There has been some discussion regarding whether the Court could dismiss the case as improvidently granted, saying, in effect that the Court should not have accepted the case. In that situation, the case is simply treated as if the Court had never granted certiorari and the appellate court decision stands. While not common, the Court did issue such a ruling just last year in First American Financial Corp. v. Edwards, No. 10-708, a case based entirely on standing, wherein the Court heard oral arguments in November 2011 but did not dismiss it as improvidently granted until the last week of June 2012.
b. No standing. If a majority of Justices were to find that the proponents of Prop 8 did not have standing, then the ruling of the Ninth Circuit would be vacated and, in all likelihood, the district court ruling would be considered reinstated, meaning Prop 8 would be stricken as unconstitutional. Though, a party with possible standing could challenge that ruling in the future.
c. Standing, nation-wide ruling. If the Court ruled Prop 8 proponents do have standing, the Court could issue a nation-wide ruling that same-sex marriage is a fundamental constitutional right and must be available to all United States citizens. This ruling seems unlikely.
d. Standing, CA only. If the Court ruled Prop 8 proponents have standing, the Court could follow the Ninth Circuit’s ruling, which is limited to California, based on the Romer rationale discussed above.
e. Standing, 9-State rule. If the Court ruled Prop 8 proponents have standing, the Court could rule that once a state has provided by law that same-sex couples will have the same rights as heterosexual couples, as California did (as well as 8 other states), there is no legitimate justification for denying those couples the status of “marriage” itself. Based on this reasoning, such a conferral of second-class status must be designed merely to stigmatize some couples on the basis of sexual orientation, something the Constitution forbids. This ruling also seems unlikely.
f. Standing, Uphold Prop 8. The Court could rule to reverse the 9th Circuit decision and uphold Prop 8 as a reasonable exercise of a State’s power to regulate marriage and protect it as a focus of procreation. Such a ruling would not mean that same-sex marriage was prohibited anywhere else in the nation, but it would mean that bans on such marriages were constitutional.
g. No majority ruling. If the Court issues a ruling, but does not have a 5 vote majority on any one ruling, then the 9th Circuit’s California only decision would become final. That court would remove the temporary order blocking marriages and same-sex couples could resume getting married in the state.
As a disclaimer, my own prediction may admittedly be swayed by my personal preference because these arguments did not fill me with confidence with regard to any ruling on the merits. Without even addressing standing at this point, I feel confident this Court is not going to issue a ruling that proclaims the fundamental right of marriage extends to same-sex couples. I think certain conservative Justices want to rule on the merits of this case because they want to uphold Prop 8. However, I don’t think either side is going to reach a majority without Justice Kennedy. Justice Kennedy has always been a strident defender of the preservation of state’s rights. It is upon this basis I believe he will rule in favor of striking down Section 3 of DOMA, but that creates an interesting conflict for this case. Still, I find it difficult to conclude Justice Kennedy wants to uphold Prop 8 but he seemed relatively clear he would not strike it based upon the reasoning of the Ninth Circuit, and that leaves him with few options as he seemed even more unlikely to rule in favor of a nation-wide ruling (and there would not be a majority for that ruling, regardless). I think the Court will either find that the proponents of Prop 8 do not have standing and therefore never reach the merits, or they will do exactly what they did last year in the First American case and dismiss as improvidently granted. In either situation, Prop 8 would be considered unconstitutional for the time being.
– Jenny Evans