Kevin and Carol set the table for this week's historic proceedings, wherein the high court will take up the contentious issues of same sex marraige, states' rights, and equality under the law. Based on initial tea leaves from the first session of oral arguments -- which, conservatives will painfully recall, can be misleading -- the justices may be inclined to avoid ruling on heart of the issue. Tom Goldstein of the well-respected SCOTUS blog sat in on today's deliberations and envisions a punt on third and long:
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. He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new. He also noted the doubts about the petitioners’ standing. So his suggestion was that the case should be dismissed.
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.
In other words, the Court could find several avenues to avoid upholding California's "Prop 8," while also declining to explicitly strike it down. If the justices venture down either of these paths, then vote to strike down the 1996 Defense of Marriage Act -- which many people now anticipate -- the issue of gay marriage would fall to the states. Former federal judge Michael McConnell, an esteemed conservative, sketched out this very scenario in the Wall Street Journal last week:
Even though the stage seems set for a momentous ruling by the court, the litigation actually offers the justices a golden opportunity to resolve these cases without setting a precedent either way, and to reaffirm the ideal of democratic, decentralized decision-making...If the court dismisses the Proposition 8 case on standing grounds and strikes DOMA down on federalism grounds, the combined effect would be to reaffirm America's democratic, decentralized decision-making process without imposing an answer—one way or the other—to the same-sex marriage question. By taking such a path, the court would be spared from imposing a single nationwide definition of marriage as a matter of constitutional law, and from having to rule, for all time, that there is or is not a constitutional right to same-sex marriage—a momentous step that some justices might be reluctant to take. It would leave the issue to the states, at least for the time being. This course might appeal to centrist justices like Anthony Kennedy, John Roberts and Stephen Breyer—and perhaps could even command a unanimous court, which would have a welcome calming influence on the nation's culture wars. Considerations of these sorts have long been part of the virtue of judicial modesty, too often undervalued by partisans on both sides. In this instance, modesty requires no more than that the justices follow the technicalities of the law.
Be sure to read McConnell's entire piece for his persuasive explanation of why such a split-baby decision would reflect both Constitutional soundness and judicial restraint. Politically, both sides could claim some degree of victory: Same-sex marriage supporters would be moderately pleased at the invalidation of DOMA and the Court's unwillingness to uphold Prop 8. Opponents would be relieved by the justices' resistance of the "momentous decision" temptation by refusing to establish a new sweeping, fundamental right. If same-sex unions continue to gain public opinion and legislative steam, this issue may very well be settled over time by the people and their elected represenatives. Such a democratic outcome would confer more legitimacy onto America's ongoing gay rights evolution, perhaps even in the eyes of staunch opponents. In some cases, controversial and significant changes in acceptable mores may best be determined by society writ large, rather than by judicial fiat (see: Roe v. Wade). Oral arguments over DOMA are slated for tomorrow; SCOTUS' ruling will be announced late in the spring. Full audio of today's arguments is available HERE.
Guy Benson is Townhall.com's Political Editor. Follow him on Twitter @guypbenson. He is co-authors with Mary Katharine Ham for their new book End of Discussion: How the Left's Outrage Industry Shuts Down Debate, Manipulates Voters, and Makes America Less Free (and Fun).
Author Photo credit: Jensen Sutta Photography