I’m surprised. I said a few weeks ago that I thought neither wing of the Court had an incentive to grant cert on gay-marriage cases right now. The conservative wing should be worried that Kennedy, who’s written two landmark opinions supporting gay rights, will vote with the liberals. The liberal wing should be worried that a Court ruling imposing gay marriage nationwide will generate a ferocious backlash just at the moment that SSM supporters are starting to win state referendums.
It only takes four votes to grant cert. Which side decided to roll the dice?
The new California [Proposition 8] case, Hollingsworth v. Perry, No. 12-144, was filed in 2009 by Theodore B. Olson and David Boies, two lawyers who were on opposite sides in the Supreme Court’s decision in Bush v. Gore, which settled the 2000 presidential election. The suit argued that California’s voters had violated the federal Constitution the previous year when they overrode a decision of the state’s Supreme Court allowing same-sex marriages…
Judge Stephen R. Reinhardt, writing for the [Ninth Circuit] majority [that struck down Proposition 8], relied heavily on a 1996 majority opinion from Justice Kennedy in Romer v. Evans, which struck down a Colorado constitutional amendment that had banned the passage of laws protecting gay men and lesbians. The voter initiative in California, known as Proposition 8, had done something similar, Judge Reinhardt wrote…
“For now,” he said, “it suffices to conclude that the people of California may not, consistent with the federal Constitution, add to their state Constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the state and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class.”
The Supreme Court has several options in reviewing the decision. It could reverse it, leaving California’s ban on same-sex marriage in place unless voters there choose to revisit the question. It could affirm on the narrower theory, which would allow same-sex marriage in California but not require it elsewhere. Or it could address the broader question of whether the Constitution requires states to allow such marriages.
My hunch is that it was the conservatives who voted to take both cases, not the liberals. The liberals have no real incentive to touch this right now. They were just granted four more years to hope for a conservative vacancy on the Court, at which point gay marriage by judicial fiat will be a fait accompli. The more states enact gay marriage in the meantime, the stronger their political position will be when that moment finally arrives. And Kennedy, while likely to vote with them, is always a wild card. Why take a chance on him now and risk an unfavorable precedent when they can simply punt? They’ve got time; they can wait. For the conservatives, the logic runs the opposite way. As skittish as they are about Kennedy, they’re better off forcing this issue and gambling on him than waiting for a fifth liberal justice to be appointed by Obama. Ruling against gay marriage now won’t stop a liberal Court from overruling the decision later, but it will help delegitimize the future ruling by underscoring how nakedly ideological the Court’s changing thinking is. The conservatives may also figure that accepting this now along with DOMA may incline Kennedy to issue a split decision. Striking down either DOMA or Prop 8 would be huge, but striking down both on the same day would be epochal, maybe too much so to make a moderate like him comfortable. It could box him in on federalism too. If he’s inclined to strike down DOMA in the name of letting states set the rules on family law, then why can’t Californians set their own rules with Prop 8?
The only reason I can think of why the liberals might want to hear this case is because they think it’s important to have justices from both wings of the Court in the majority for a ruling as controversial as finding an equal protection right to gay marriage. But like I say, even with Kennedy’s record on gay rights, that’s a serious gamble. And how would having a bipartisan Court majority help sell this decision to the public if the only bipartisan element is Kennedy? A majority with Scalia, Alito, or Thomas in it would be dramatic. A majority with four liberals plus the guy who’s voted with liberals repeatedly on gay rights would be meh.
Update: Split decision on DOMA?
Court watchers I’ve corresponded with believe that the likeliest outcome, given the justices’ individual histories on similar questions, would be a decision that strikes down the federal recognition prong of DOMA while also ruling there is no constitutional right to get married. This result would mean that married gay couples would be eligible for federal benefits but that gays could only get married in states where such unions were legal.