Chief Justice John G. Roberts Jr. often looks for a narrow way to decide a major case. He also focuses on the procedural rules, and there is some doubt over whether the sponsors of Proposition 8 have "standing" to represent the state of California in the case. The sponsors of the gay marriage ban are private citizens, and their opponents say they do not have a personal stake in the case that would give them legal standing.The Court needs to defend the will of the voters in California. Anything else will be a victory for the gay left. And either way, let DOMA crash. Leave it to the states.
If the high court were to punt for procedural reasons in the Proposition 8 case, most lawyers say, California's gay marriage ban would fall as a result of U.S. District Judge Vaughn Walker's ruling that declared it unconstitutional. Others say that a procedural ruling might mean the only winners would be the two gay couples who filed the suit to overturn the ban.
In another scenario, the court might follow a procedural finding on Proposition 8 with a major decision on the federal Defense of Marriage Act, the case to be heard Wednesday. This creates the possibility of a ruling that the government cannot discriminate against gays and lesbians and deny equal benefits to gay couples, but it would not mandate that all states allow gay marriage.
Some legal scholars, citing recent public opinion polls and votes in several states, said it was unlikely that the court would completely shut the door on gay marriage. Harvard Law School professor Michael J. Klarman, author of a recent book on the legal fight over same-sex unions, said the justices would not want to put their names to an opinion that would be seen over time as narrow-minded.
The menu of options facing the court could complicate the oral arguments this week and make it especially hard to forecast the outcome, which is likely to be released in June. They also may prove crucial if the justices find themselves closely split, as they were last year in the case on President Obama’s healthcare law. Then, Roberts found a narrow option for upholding the Affordable Care Act that appealed to him alone, and the four liberal justices opted to join him.
This time, the four liberal justices are likely to take their cue from Justice Anthony M. Kennedy. If he is willing to strike down Proposition 8 narrowly or rule broadly in favor of same-sex marriage, they would probably join him to make a majority.
The court's seniority system puts Kennedy in position to write the majority opinion in that event. When the justices meet in their private conference late this week, they will vote on whether to uphold or reverse the U.S. 9th Circuit Court's decision striking down Proposition 8. Roberts speaks first, followed by Justice Antonin Scalia. Both are likely to vote to reverse the 9th Circuit's decision.
Monday, March 25, 2013
At the Los Angeles Times, "Supreme Court has menu of options in gay marriage case":