I have to admit that I spent a lot of time staring at a blank screen trying to figure out how to write this piece. I do my best, in writing about legal matters, to find a way to cut through the jargon and make convoluted proceedings a little easier to understand. In listening to the approximately one hour of oral arguments released by the Supreme Court today it became quite clear that this wasn’t going to be a particularly easy task, but here goes.
Just over a year ago, the United States Court of Appeal for the Ninth Circuit upheld a lower court ruling that California’s Proposition 8, passed in November of 2008, was unconstitutional. Proposition 8 took away the right of same-sex couples to marry that had previously been granted by the California Supreme Court.
Unlike most cases, which tend to be straightforward, the Prop 8 case isn’t as simple as your usual win/loss situation. That’s what makes it so complicated. The Supreme Court has a number of options before it, and for any one of those options to be successful, at least five of the nine justices will have to support it. On the side of those who support Prop 8, there is one option for them to win, and that is for the Supreme Court to uphold Proposition 8 as a valid and constitutional enactment.
On the side of those who support marriage equality, there are a number of ways that the Supreme Court could invalidate Prop 8. Starting with the broadest possible decision, they could rule that there is a national, constitutional right to equal marriage. This decision would not just strike down Prop 8, but would also strike down every other ban on same-sex marriage in the United States.
The second option, the so-called middle route, would have the Supreme Court say that where a state gives same-sex couples all the benefits of marriage, but without the name (separate but equal), there is no basis for that kind of discrimination. That would result in a decision that would affect the eight states that offer civil unions, converting them all to equal marriage instead.
The third option, the California-only route, would see the Supreme Court accept the logic of the Ninth Circuit Court of Appeals, which held that once you give a group a fundamental right like marriage, you can’t take it back. This sort of a ruling would allow marriages to resume in California, but leave all other bans in place.
Going into this hearing, there was another possible way to win. In order to bring a case in Federal Court, one has to have what’s known as locus standi, or standing. This concept simply means that you have to be directly affected in a way that distinguishes you from the general population. There is a substantial body of law that suggests that the supporters of Proposition 8 don’t have standing to bring this case. If the Supreme Court agrees, then they will not decide the case at all, and it will also follow that there was no right even to appeal to the Ninth Circuit. Presumably (although this is open to some debate), in this situation, the original District Court decision would stand, and marriages would resume in California.
Turning to today’s hearing, it’s worth noting that it’s incredibly difficult to read into the questions that the justices ask. Sometimes their questions are designed to signal to their colleagues what they’re thinking, but just as often, they’re just looking for answers to legal questions.
Today’s hearing made it a challenge to predict how the Court will rule. As noted above, there are a lot of different options for the Court to choose from. It’s fair to say that even among the liberal justices, it didn’t seem that there was much appetite to “go big” and create a national rule on marriage. There also didn’t seem to be a majority of justices in favour of upholding Prop 8. A number of justices, including Anthony Kennedy, the key swing vote on the Court, also appeared uncomfortable with the strained logic that was the basis of the Ninth Circuit’s decision.
So where does that leave things? It seems like the Court will do one of two things. At least seven of the nine justices, by my count, were deeply skeptical about whether the proponents of Prop 8 had standing to bring the appeal to begin with. A number of justices also seemed to accept the legal logic of the middle route, even though it would have the odd effect of making states that provide some rights to same-sex couples subject to harsher rules than the ones who provide none at all.
Finally, an unexpected option was raised. Justice Kennedy, perhaps sensing that support wasn’t gathering behind one option, and that it might not at all in this case, proposed one final option: to declare that Supreme Court review had been “improvidently granted.” This procedural maneuver would basically mean that the Supreme Court had made a mistake when it agreed to hear the case to begin with. The effect of such a decision would be that the ruling of the Ninth Circuit would stand, but without the weight of Supreme Court precedent to give it national effect. Marriages would resume in California, and we would wait for the next case.
It’s impossible to predict what the Supreme Court will do, although it does appear that the most likely outcomes all result in marriages resuming in California this summer.
Submitted By: Sameer Ismail
Sameer Ismail has been a political consultant for a number of years. He holds a degree in Political Science from the University of British Columbia, and is currently completing a degree in Law.
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