Early tea leaves from Supreme Court arguments on gay marriage: Kennedy hints that he wants Prop 8 case dismissed?

posted at 11:22 am on March 26, 2013 by Allahpundit

Just want to get this up before fuller reports of this morning’s oral arguments start trickling in. SCOTUSblog is on the scene and says we may, against all odds, see this case dismissed:

That last tweet is … quite a statement, especially coming from a respected site. How can they say that with any assurance? After day one of arguments on ObamaCare, it sounded like the conservative bloc was all set to torpedo the law. You know how that turned out.

More from BNO:

Makes me wonder if we’re looking at some sort of three-way split, in which the four liberals vote to strike down Prop 8, Scalia, Alito, and Thomas vote to uphold it, and Roberts and Kennedy vote that the plaintiffs don’t have standing. (More on that in a bit.) With a posture like that, with only plurality support for a particular position, that position would have no binding precedential force on the lower courts. Stand by for updates; SCOTUSblog should have a fuller post up soon.

Update: If you missed it a few days ago, here’s former federal judge (and potential GOP Supreme Court appointee) Michael McConnell on the standing issue:

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.

In Hollingsworth, the Proposition 8 case, the state of California has declined to defend the state’s own law. The Ninth Circuit Court of Appeals allowed a group of private citizens, proponents of the proposition, to step in and defend the law in court. Former Solicitor General Walter Dellinger, who served under President Clinton, has filed a friend of the court brief arguing persuasively that these intervenors do not have standing to sue (meaning they have no legal stake in the issue, but only political interest). He has precedent on his side. More than 25 years ago, in Diamond v. Charles, the court held that a pro-life doctor did not have standing to defend an antiabortion law in court when the state attorney general refused to do so. The same lack of standing is true here.

If Mr. Dellinger is right (and I think he is), the Supreme Court has no jurisdiction to decide the Proposition 8 case, and neither did the Ninth Circuit. The court should vacate the decision striking down Proposition 8, leaving in place the original district-court order that prompted the case by allowing two same-sex couples to marry, but depriving Hollingsworth of precedential effect.

Ironically, the refusal of California’s political establishment to defend Prop 8 in court might end up destroying their best chance to see gay marriage legalized nationally by the Supremes.

Update: The Court’s supposed to release audio of today’s arguments within the next hour or two. Until then, Reuters is liveblogging from the scene. And here’s another tea leaf:

Update: SCOTUSblog doubles down:

Don’t be too sure that Kennedy is the fifth vote here. Conn Carroll makes a fair point about Roberts:

Remember, Chief Justice John Roberts initially voted to overturn Obamacare on the merits of the case and the law. But he then switched his vote for entirely political reasons to protect his legacy as Chief Justice. In other words, the legal arguments that lawyers will make this week and the legal questions the justices will ask, are all almost entirely irrelevant. The only question on Chief Justice Roberts mind when deciding these cases will be, “Can SCOTUS survive a gay marriage loss?”…

There simply is zero chance that Roberts would put his Court on the wrong side of history by upholding California’s Proposition 8 or DOMA. At best, Roberts will take a weaselly way out and find ways of skirting the substance of the issue on each case. But even that is unlikely. Instead, same-sex marriage opponents should begin preparing themselves now for the high likelihood that gay marriage is about to become a constitutional right.

In fairness to SCOTUSblog, though, Reuters is getting the same strong vibe from Kennedy:

Update: Another good tick-tock of oral arguments from the WSJ. Noteworthy:

Justice Antonin Scalia asked Olson when exactly it became unconstitutional to bar gays and lesbians from marrying. Was it 1791? 1868? Mr. Olson responded with a question of his own: When did it become unconstitutional to ban interracial marriage?

Don’t try to answer my question with your own question, Justice Scalia responded. Mr. Olson then said he could give no specific date on which a ban on gay marriage became unconstitutional. But courts, he said, have never required that kind of precision.

Update: Here’s where all the tea leaves on standing are coming from:

Update: Here’s Tom Goldstein’s post at SCOTUSblog on the hearing. His prediction: A 4-1-4 split, with Kennedy holding out for dismissal of the case due to lack of standing.

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.

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.

He seems more certain about Roberts’s vote than I am, but then he’s the expert.

Update: Here’s your transcript of this morning’s arguments, courtesy of the Journal. And here’s the audio via the Court itself.


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I’m confused…how does it hurt the rights of a child? There are many unmarried, hetero couples who have children. Are their rights hurt because mom and dad aren’t married? Are the rights of children of a single parent household hurt because that parent isn’t married to the other parent(s) of his/her children? Why are the rights of the children even mentioned? This seems to be a real stretch.

herm2416 on March 26, 2013 at 11:40 AM

I agree. Add in Justice Ginsberg’s almost incoherent slurring of opinion about “all areas of our lives” being affected by marriage – - thus, change the definition of it because, you know, all areas of our lives affected by it or something — and it sure sounds like the current
SC is trying so very hard to find just about every touchy-feely excuse to issue a touchy-feely irrational decision. Because they can.

I thought Justice Roberts’ statement in which he opined in outrage, somewhat, about who he assumed were 40 Senators voting because they “disliked gay people” or something similar was awful, loitering around Intellectual Kindergarten — it was the “gay people” term that was offensive to me and alarming. A Justice on SC (or any other) with such reduced language capacity and assumptions was/is outrageous.

Lourdes on March 27, 2013 at 6:17 PM

Justice Anthony Kennedy suggests throwing out CA gay marriage ban would take Supreme Court into “uncharted waters.”

No kidding.

The heart and essence of this issue is that the voting majority had their decision (to ban ‘gay marriage’ in CA) cast aside and cast aside by one highly prejudicial, embittered and acerbic man.

The majority voted, the process either works or it doesn’t. What happened in CA by Judge Walker’s cryptic denigration of the credibility of that voting majority should therefore be carried forward by all federal courts or none at all: either the voters determine their government or they don’t. The Judiciary doesn’t get to “make government.”

Lourdes on March 27, 2013 at 6:22 PM

But he then switched his vote for entirely political reasons to protect his legacy as Chief Justice.

He made a calculation — i.e., he wagered that the liberal orthodoxy would prevail in the American experience, and his “legacy” would depend on to what extent he conformed to or resisted this orthodoxy. He didn’t care about law or the Constitution or American history more than he cared about how he would suffer or prosper from the opinions of the cultural elite.

A weak man who failed freedom, and that will be his legacy.

rrpjr on March 26, 2013 at 11:53 AM

Although reticent to express this, I will anyway: I agree with you. Roberts has proven to be a big disappointment — intellectually weak, he seems browbeaten by some emotional needs to be popular.

Lourdes on March 27, 2013 at 6:28 PM

Under California law, voters are able to pass both initiatives and amendments; initiatives are essentially laws that override and supersede the Legislature, but do not necessarily bind the judiciary as per a constitutional amendment.

California voters passed Proposition 22, which defined marriage as being between a man and a woman, as an initiative.

Gay-sex liberal bigots then filed a lawsuit to overturn Proposition 22, since their fellow bigots in the Legislature were blocked from doing anything about it.

Voters then raised Proposition 8 as a constitutional amendment, seeing the obvious — that the bigoted and biased California Supreme Court was going to strike down Proposition 22 and force the state to issue gay-sex marriage licenses.

The California Supreme Court struck down Proposition 22 using bullsh*t reasoning during the time that Proposition 8 was being raised and prior to the vote on it, and then blatantly overstepped its power by ordering that gay-sex marriage licenses be granted immediately.

Which is why Proposition 8 passed.

The gay-sex liberal bigots and the Obama Party then started to lie blatantly about how the “right” had been “taken away” — despite the fact that, had the Court actually followed law and precedent and suspended its ruling until the vote was completed, there never would have been a “right” to be taken away in the first place.

And then the gay-sex liberal bigots refused to carry out their constitutional duties and defend the laws in court.

This is why the Supremes are screaming and squirming. This whole situation has been nothing but judicial and governmental malpractice with deliberate intent to disenfranchise and punish the voters throughout for not ruling the way that liberal bigots demand they do.

The correct ruling is very simple: Proposition 8 stands, being a duly-passed constitutional amendment, citizens have the right to defend a law that they passed when government officials ignore their constitutional duty and refuse, and both Federal and state governments hold and maintain the power to define marriage as they see fit.

Marriage is not a civil right, nor has it ever been.

northdallasthirty on March 26, 2013 at 12:00 PM


Very well said.

This portion, particularly:

This whole situation has been nothing but judicial and governmental malpractice with deliberate intent to disenfranchise and punish the voters throughout for not ruling the way that liberal bigots demand they do.

The correct ruling is very simple: Proposition 8 stands, being a duly-passed constitutional amendment, citizens have the right to defend a law that they passed when government officials ignore their constitutional duty and refuse, and both Federal and state governments hold and maintain the power to define marriage as they see fit.

Lourdes on March 27, 2013 at 6:34 PM

herm2416 on March 26, 2013 at 11:40 AM

The rights of children of gay parents are a real issue and form much of the basis for the American Academy of Pediatrics’ opinion in support of same sex marriage. See:
http://pediatrics.aappublications.org/content/early/2013/03/18/peds.2013-0377.full.pdf+html

To the extent that some of these problems are faced by unmarried heterosexual parents, that is by choice, since those parents could marry if they want to.

cam2 on March 26, 2013 at 12:00 PM

I WAS WONDERING WHEN that bit of “gay propaganda” would be used and there it is, used by “cam2″.

TAHT GROUP is an organization, NOT A MEDICAL ONE but a POLITICAL ACTIVIST GROUP.

Meanwhile, PEDIATRICIANS — those people who have medical degrees and have specialized in Pediatrics — DISAGREE and CITE THE LACK OF SCIENTIFIC PROOF TO SUPPORT THE POLITICAL ALLEGATIONS OF THE “American Academy of Pediatrics.”

The American Academy of PEDIATRICIANS, who are physicians, DISAGREE with the “American Academy of Pediatrics,” which is a political activist group and is not a medical-based one: they “make stuff up” for political-socio-political purposes.

Lourdes on March 27, 2013 at 6:38 PM

In its statement the AAP says that supporting gay “marriage” is “the best way to guarantee benefits and security for their children.”

“Children thrive in families that are stable and that provide permanent security, and the way we do that is through marriage,” said Benjamin Siegel, MD, FAAP, chair of the AAP Committee on Psychosocial Aspects of Child and Family Health, and a co-author of the policy statement.

“The AAP believes there should be equal opportunity for every couple to access the economic stability and federal supports provided to married couples to raise children.”

Last year, the AAP also stirred controvery when it advocated that teens be given access to abortifacient emergency contraception “regardless of age.”

The AAP’s support for gay “marriage” follows a policy statement published in 2002, in which the organization supported adoption by partners of the same sex.

The organization’s newest statement claims that scientific research has shown that there is no cause-and-effect relationship between parents’ sexual orientation and children’s well-being.

The AAP’s liberal positions on social issues, particularly gay adoption, led in 2002 to the creation of another group of pediatricians in the United States, the American College of Pediatricians (ACP).

In the wake of the AAP’s statement, the ACP has released its own statement reaffirming that “the intact, functional family consisting of a married (female) mother and (male) father provides the best opportunity for children.”

The ACP also accuses the AAP of ignoring “important research on risks to children in favor of the wants of adults.” 



In previous comment, I erred: I meant to refer to the AMERICAN COLLEGE OF PEDIATRICIANS, who are physicians, that disagrees with the socio-activist group/s known as the other two (American Academy of Pediatrics, an activist group, not a medical one, and the American Academy of Pediatricians, who are doctors but are engaged in socio-political activism).

The point is that doctors — people with medical degrees who have specialized in Pediatrics — have noted that those two organizations (above) are advocating social issues not based upon any scientific proof or evidence. So they’re advocating “political issues” based upon political associations, orientations, not based upon science (medicine, in this case).

Lourdes on March 27, 2013 at 6:46 PM

cam2 on March 26, 2013 at 12:00 PM

I forget, was this opinion formulated before or after they endorsed Female Genital Mutilation?

happytobehere on March 26, 2013 at 12:03 PM

At “happytobehere,” see my comments with link/s on Page 4 of comments here.

Lourdes on March 27, 2013 at 6:47 PM

It’s particularly unsettling that Justice Kennedy — or any other SC Justice — would be *so concerned* about (what Kennedy also identified as “40,000 children in CA”) “gay couples’ children while utterly ignoring the concerns of the CA voting majority.

Lourdes on March 27, 2013 at 6:08 PM

Now I warned you I was going to do this.

We shouldn’t ignore the concerns of the California voting majority? That kinda puts you in conflict with what this guy said.

Correct, and, also, neither is popularity an indication of what is right.

Lourdes on March 15, 2013 at 4:50 PM

alchemist19 on March 27, 2013 at 8:13 PM

Lourdes on March 27, 2013 at 6:08 PM

Now I warned you I was going to do this.

We shouldn’t ignore the concerns of the California voting majority? That kinda puts you in conflict with what this guy said.

Correct, and, also, neither is popularity an indication of what is right.

Lourdes on March 15, 2013 at 4:50 PM

alchemist19 on March 27, 2013 at 8:13 PM

It is tedious to read your *allusion* to potential conspiracy theoreticals, that stuff you think you found called “gotcha” somewhere in your fantasies.

VOTER decisions by majority — in CA, specifically, Prop. 8 passed by reasonably high majority, not marginal — are not an indication of need for popularity or vanity to which my 8:13 PM comment did refer.

SOCIAL need for popularity (“I want those guys/kids/ladies/whatever to think I’m cool, I want them to want me…”) is what the latter remarks at 8:13 refer to.

Contrary to that, the voter majority in CA that passed Prop. 8 voted their beliefs, opinions, values, etc.: “what was right” for the individual voter.

So, yes, the voter decision was right as also “popular” when defining “majority” as some popularity contest. But, no, it wasn’t especially since voters acted INDIVIDUALLY without reward of vanity appeal or reward.

You got nothin’.

Lourdes on March 27, 2013 at 8:52 PM

Lourdes on March 27, 2013 at 8:52 PM

The 8:13 comment was me to you. Neither of your comments contained that timestamp. I also tried to guess which comment you meant to refer to when you accidentally referenced mine but it didn’t make sense either way so I’ll give you another crack at it.

alchemist19 on March 27, 2013 at 10:48 PM

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