Washington, D.C.—The Supreme Court heard oral argument
today on California’s 2008 ballot initiative Proposition 8, which
amended the state constitution in order to forbid gay marriage. The
upshot appears to be that while a majority of the Court believes
Prop. 8 to be misguided, including both the four liberal justices
and Justice Anthony Kennedy, those justices are not willing to
strike Prop. 8 down as unconstitutional and therefore legalize gay
marriage in all 50 states. As Justice Kennedy declared in perhaps
the most significant statement of the morning, this case asks the
Court “to go into uncharted waters.”
Kennedy’s comments are certain to disappoint gay marriage
advocates. As the author of the Court’s rulings in both Romer
v. Evans (1996) and Lawrence v. Texas (2003), Kennedy
is one of the Court’s strongest voices in favor of gay rights. Yet
he gave no indication this morning that he saw the case against
Prop. 8 as a proper vehicle for establishing a sweeping win for gay
marriage. In addition to referring to the “odd” rationale of the
federal appellate court ruling against Prop. 8, Kennedy wondered
whether the Supreme Court should have even agreed to hear the Prop.
8 case in the first place. “I just wonder,” Kennedy said, “if the
case was properly granted.”
For the Court’s liberals, on the other hand, the main impediment
to legalizing gay marriage nationwide appeared to be the question
of jurisdiction. Because the state of California announced that it
would no longer defend Prop. 8 in court, the law’s legal defense
was taken up by a group of individuals who had supported the
original ballot initiative. So in addition to the constitutionality
of Prop. 8, the Supreme Court also considered today whether or not
those ballot supporters possessed the legal standing to defend the
law.
Justice Ruth Bader Ginsburg set the skeptical tone right from
the outset. “Have we ever granted standing to proponents of ballot
initiatives?,” she asked, knowing that the answer would be “no.”
Justice Elena Kagan promptly followed up. “Could the State assign
to any citizen the rights to defend a judgment of this kind?” she
questioned, her tone suggesting that she thought not. Chief Justice
John Roberts also voiced skepticism, declaring at one point, “a
State can’t authorize anyone to proceed in federal court...I don’t
think we’ve ever allowed anything like that.”
Taken together, the combination of Kennedy’s hesitation about
entering “uncharted waters” and the apparent liberal consensus on
standing means the Court is unlikely to rule on the constitutional
merits of Prop. 8 and will instead limit its decision to the
particular circumstances present in California. That may still mean
the legalization of gay marriage in the Golden State, but the
ruling won’t go any further than that.
Watch Matt Welch interview Damon Root on today's oral
argument:
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