With a few days now to consider the justices’ action, Walker has concluded that the Supreme Court’s conservatives avoided a direct ruling on same-sex-marriage bans generally because they did not have five votes to prevail on the merits of the case.
In short, if the court had ruled directly on the question of whether states act constitutionally in banning gay marriage, the answer would have been no. So instead, the court declared it had no jurisdiction to decide the issue. As Walker sees it, Justice Antonin Scalia’s vote to dodge the issue tells the story.
“The fact that Justice Scalia joined with Chief Justice Roberts in the determination that the proponents did not have standing telegraphed to me that Scalia had concluded that he did not have the votes necessary to uphold Proposition 8,” Walker says.
“Had he thought there were five votes for that result, my guess is that he would have been inclined to find standing so that the court could tackle the case on the merits.”