As millions of people eagerly await next week’s Supreme Court action in Hollingsworth v. Perry, the case from California involving Proposition 8 (the voter-enacted ban on same-sex marriages in the Golden State), I offer below a few thoughts on what to expect and what to look for in the Court’s ruling.
We Should Not Expect a Definitive Resolution of the Federal Constitutional Question of Same-Sex Marriage
First, I don’t think we will get a big resolution of the meta-question whether the federal Constitution’s Fourteenth Amendment requires recognition of same-sex marriage. Why? Because a ruling in either direction is fraught with peril. The Court (or at least its middle, controlling wing) is probably not ready to proclaim a national right when roughly three-quarters (38) of the States currently do not recognize same-sex marriages. At the time of Loving v. Virginia, the 1967 case striking down Virginia’s ban on interracial marriage, only 16 (or less than one-third) of the States prohibited marriage across races. And in Lawrence v. Texas, the case from a decade ago in which a divided Court invalidated Texas’ attempt to criminally punish someone for engaging in homosexual conduct, the Court noted that only a handful of states at that time actively prosecuted persons for similar conduct. Even the momentous equality ruling Brown v. Board of Education did not call into question the laws of more than 20 or so states that mandated educational segregation in 1954. As bold as the Supreme Court has been in protecting liberty and equality rights, past practice does not suggest a likely proclamation of a national right here, when things are so fluid in the States.
But that fluidity also cuts against a ruling flatly rejecting a national right to same-sex marriage. Because things are changing so quickly (witness the three states that have decided to legalize same-sex marriage just in the few months since the Supreme Court heard oral arguments in the Proposition 8 dispute), the number of states embracing gay marriage could increase over the next decade from 12 to something in the range of 30 or more. So the Court (or, again, its middle wing) may not want to deny a same-sex marriage right claim altogether next week, because to do so would make it harder (on account of stare decisis) for the Court to recognize a national right in the coming years, should a majority of Justices think doing so is the correct constitutional thing.
In short, my sense has always been that the Court had no desire to wade into the same-sex marriage thicket while the issue is percolating so actively in legislatures and state courts, and that the only reason the Court granted review in the Defense of Marriage Act (DOMA) and Proposition 8 cases this year is that lower federal courts invalidated these prominent enactments. (That is to say, had lower courts upheld DOMA and Proposition 8, I think the Justices would have been content to deny review.) Having been essentially forced to take cases before the Justices really wanted to weigh in at all, the Court will, I think, try to resolve less, rather than more. In the DOMA case, there seemed at oral argument to be some support among the Justices to invalidate the challenged provision of DOMA without imposing same-sex marriage on unwilling states (by relying to some extent on federalism rather than individual rights), and I think in the Proposition 8 case the Court will also look to act as minimally as reasonably possible.
Narrower Options in the Proposition 8 Case
So what are the remaining options for the Court concerning Proposition 8, and which ones are the most likely? One is that the Court could reject the plaintiffs’ assertion of a national right to gay marriage, but make clear that things could change as the nation evolves on this question. This is a possible route, but not a very attractive one for the middle/left of the Court, because the takeaway headline/holding would still be the rejection of the right. And this would—if the Court were then to want to reverse course and accept the right in the near-term future—require the Court to offer a somewhat contentious explanation of how the meaning of the Constitutional document can change so rapidly. Easier—for those Justices who think they may embrace the claim down the road—to avoid the broad question altogether for now.
A second option would be to strike down Proposition 8, but do so on the narrow grounds used by the Ninth Circuit and urged by the Solicitor General, grounds that would not invalidate the laws of all 37 other non-same-sex-marriage states, but rather only some small number of them. The problem is that the Ninth Circuit’s reasoning—which included the idea that California’s ban is hard to justify as rational because the state has gone so far down the road to equalizing the rights of gay and straight couples—doesn’t really work. Many of the Justices at oral argument—even those generally thought to be more liberal or moderate—made the point that telling a State that it can’t be rational in moving incrementally simply because it has moved at all is odd, at the very least. The argument is a tough sell, even though the Ninth Circuit bought it.
A third choice would be to simply dismiss the Proposition 8 case from the Court’s docket altogether. Such a dismissal (known as a “DIG”, which is short for “Dismiss as Improvidently Granted”) is certainly possible, and would enable the Court to say nothing at all about Proposition 8. It would be as if the Court had declined to grant review in the first place. But, as I’ve explained before, a DIG is hard to square with the decision of four Justices to grant certiorari in the first place; nothing in the case has really changed since the original grant. Moreover, a DIG would leave the Ninth Circuit ruling—and its reasoning—intact as the law of the Western United States, something a large number of Justices may be uncomfortable about. Also, if the Court were going to DIG the case, it might have announced that decision before now. So I place the odds of a DIG at something below 50%.
The Standing Route
That brings us to an approach I have been arguing for years is the best way to go—a ruling that Proposition 8’s sponsors lack standing in federal court to defend the initiative, even though the elected officials normally counted on to defend (the Attorney General and the Governor) have declined to do so. I think this is the most likely of the various possible outcomes (perhaps more likely than all the others combined) because it has many virtues.
Such a ruling would allow the Court to avoid speaking to the merits of the same-sex marriage dispute, but would also erase the Ninth Circuit’s opinion. A ruling on standing would—in the end—most likely result in Proposition 8’s demise. But, importantly, under this scenario, same-sex marriage would likely come about in California not from unelected federal judges’ contested views of the Constitution, but rather from the actions of elected (and accountable) officials in California (the Attorney General and Governor) whose failure to defend the measure will ultimately bring it down.
A standing ruling would more than just prudent; as I have argued, I think it would be justified by the principles of standing law itself, and would resolve an important and open question within the doctrine of standing. So a ruling that the Proposition 8 proponents lack standing should be seen not an unprincipled dodge, but rather as a legally justified and eminently sensible course of action.
Things to Look for if the Court Rejects the Proponents’ Standing
If the Court does pursue this avenue, here are the two things to look for/focus on:
First, as for same-sex marriage in California, we should examine the ruling carefully to see what guidance the Court gives to the lower courts on remand. Everyone agrees that the Ninth Circuit opinion would be vacated (undone), and that the two named-plaintiff couples who sued should get their licenses. But how and why they get their licenses will be important, and will affect whether other same-sex couples in the State should get licenses right away too, or instead will have to wait for future legal or political developments. Key to this question will be what, if anything, the Court says about trial Judge Vaughn Walker’s judgment striking down Proposition 8 that he issued after the high-profile trial he oversaw. We are not talking here just about the scope of Judge Walker’s injunctive remedy against State officials, but whether the judgment in favor of the plaintiffs itself has to be erased and re-sought (in a different form) by the plaintiffs. I have argued that Judge Walker’s judgment probably should be vacated (and language near the end of the Supreme Court’s opinion in Karcher v. May seems to support my argument), but we need to see whether any, or a majority, of the Justices speak directly to this issue and what they say. The issue will undoubtedly be important for the timing of same-sex marriage in California, but it also has ramifications for standing doctrine more generally. The question of what, precisely, follows from a finding that the only defendant who is actively defending lacks standing is an important one.
Second, we should examine what, if anything, the Court says about how initiatives can be defended when elected officials don’t defend them, so that the initiative device itself is not diminished. The best argument for initiative-proponent standing is that elected officials shouldn’t be able to kill the very initiative device that is designed to be a check on their power. There are ways for the Court to ensure that initiatives can be defended even if the Proposition 8 proponents lack standing—e.g., voters can deputize initiative sponsors explicitly and provide a framework for their authority to represent the people (in a way that Proposition 8 voters did not)—but the question is whether the Court will see and discuss them.