A quick survey of the press coverage of yesterday's oral
arguments in the California gay marriage case reveals multiple
appearances of the word punt. Politico
asked, “Will Supreme Court Punt on Gay Marriage?” The
Village Voice
announced, “Supreme Court Hears Arguments Against California's
Same-Sex Marriage Ban, Punts.” Townhall.com
observed, “Early Indications: SCOTUS to Punt on Gay
Marriage?”
Let’s assume the Supreme Court does indeed avoid reaching the
constitutional question of whether or not Prop. 8’s ban on gay
marriage violates the Equal Protection Clause of the 14th
Amendment. What happens then?
One possibility is that the Supreme Court rules solely on
procedural grounds. Under this scenario, the Court would find that
the supporters of the original Prop. 8 ballot initiative have no
legal standing to defend the law in court, thereby voiding the
decision last year by the U.S. Court of Appeals for the 9th Circuit
that did recognize their standing and then struck down Prop. 8.
But that approach raises several new questions of its own. Does
District Court Judge Vaughn Walker’s earlier ruling against Prop. 8
remain in force (since the state of California, which has standing,
was still defending the law at that point in the litigation)? If
so, does that mean gay marriage is legal in California? Or does it
mean Judge Walker’s ruling applies narrowly, impacting only the
specific same-sex couples that brought the original suit?
Alternately, the Supreme Court might follow the lead of Justice
Anthony Kennedy. During Tuesday’s oral arguments, Kennedy
repeatedly suggested the Supreme Court should never have accepted
the Prop. 8 case in the first place. “I just wonder,” Kennedy said
at one point, “if the case was properly granted.” Later he raised
the issue yet again, telling the lawyer who was arguing in defense
of Prop. 8, “you might address why you think we should take and
decide this case.”
If Kennedy can convince four other justices that the Court was
in fact wrong to take the case, the Supreme Court might engage in a
maneuver that lawyers refer to as a “DIG.” That is, the Court would
dismiss the Prop. 8 case as "improvidently granted." This unusual
approach would leave the 9th Circuit’s ruling against Prop. 8 in
effect, thereby leaving gay marriage legal in California while the
Court remained silent on the issue for the other 49 states.
Finally, as Tom Goldstein observes
at SCOTUSblog, the Court could even rope in its forthcoming
decision on the Defense of Marriage Act in order to avoid ruling on
Prop. 8. As Goldstein writes:
the Court is going to address laws discriminating against
same-sex couples in the pending Windsor challenge to
DOMA. That could be a basis for declining to decide
Hollingsworth [Prop. 8]. Perhaps more likely, any
member of the Court could vote to vacate and remand the judgment in
Hollingsworth for further consideration in light of
Windsor. In that scenario, five members of the Court
could agree to vacate the Ninth Circuit’s decision on alternative
grounds (some concluding that the petitioners lacked standing and
others concluding that the court of appeals should rethink its
decision in light of whatever the Court holds in
Windsor).
Whatever the Supreme Court ultimately decides to do in the Prop.
8 case, Tuesday’s oral arguments
suggest that a sweeping endorsement of gay marriage in all 50
states is not likely to be included on the menu of options.
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