Speculating on the Supreme Court’s intentions based solely on oral arguments is inherently risky. Justices will often hint at their intentions, but that only fuels more speculation, not firm expectations.
That said, at least for now, all we have to go on is what the justices themselves asked and argued, and for now, the consensus seems to be … there is no consensus. NBC’s Pete Williams was in the chamber, and for those who can’t watch clips online, he told viewers:
“Number one, it’s quite obvious the U.S. Supreme Court is not prepared to issue any kind of sweeping ruling about gay rights. No member of the Court seemed to be very interested in that. Secondly, the Supreme Court, both liberals and conservatives, seems to be worried about writing a decision that will apply to any state outside California. Now, the proponents for the four gay couples that brought this case are really urging the Supreme Court to say that marriage is such a fundamental right that no state can constitutionally deny same-sex couples the right to marry. There seems to be very little eagerness from any members of the Court to embrace that broad of a ruling.
“So then you go to the fallback, which is argued by the Obama administration. They’re basically saying any state like California that gives all of the rights of marriage — right to adopt, the rights, all the benefits except for the word ‘marriage’ — their argument is any sate that does that is unconstitutionally discriminating by holding back the word ‘marriage,’ that there’s no principled reason for it if you’re going to say same-sex couples can do everything else that traditional couples can do. Very few members of the court seemed willing to embrace that, either.
“I think several members of the Court seem to be struggling to find a way to limit this case only to California, and one way to do that might be simply to say that the Proposition 8 proponents had no legal power to bring this in the first place. And I think frankly, for the advocates of same-sex marriage, my guess is that’s the best they can hope for.”
That last point is of particular interest, because it suggests the court may simply punt on the case, rejecting it on procedural grounds.
Tom Goldstein, who was also on hand for oral arguments, added that “several” justices had “serious” doubts about whether the petitioners even have standing to appeal the case to the Supreme Court. Among those leaning in that direction: Chief Justice John Roberts and the court’s four center-left members.
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. The upshot of either scenario is a modest step forward for gay rights advocates, but not a dramatic one. We’ll be able to explore the arguments in more depth once the transcript is released a little later today. In the meantime, keep this detail in mind: former Solicitor General Ted Olson, who argued against Prop 8 this morning, was asked what kind of ruling he expects in the case. “I have no idea,” he said.
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