In Washington, D.C. this morning, the Supreme Court heard oral arguments from opponents and defenders of California's same-sex marriage ban. The purpose of this morning's hearing was to simply to decide whether or not defenders of the ban have any grounds to appeal the earlier district court ruling in California declaring the measure unconstitutional, as well as the constitutionality of the measure itself. The court appears evenly divided on both counts, with Justice Kennedy apparently unwilling to weigh in for either side due to the relative newness of same-sex marriage.
"Much will be written about the Proposition 8 oral argument. The bottom line, in my opinion," writes SCOTUS Blog Publisher Tom Goldstein this morning, "is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional."
Defenders of the same-sex marriage ban continued to argue that states should be able to decide for themselves whether or not to permit gay and lesbian couples to wed legally. Justice Kennedy also noted the doubts about the petitioners' standing, and without giving a swing vote he suggested that the case should be dismissed. Although he acknowledged that some 40,000 children in California are waiting to have their parents' marriages recognized by the state, he seemed skeptical about the relative newness of same-sex marriages and the impact it could have on society. “We have five years of information to pose against 2,000 years of history or more,” Kennedy told the court.
According to Goldstein, those oral arguments are likely to hold up, meaning one of two things could happen here: Chief Justice Roberts along with the liberal members of the court could form a majority, and decide the supporters of Prop 8 lack standing to appeal the earlier decision. That would vacate the Ninth Circuit decision, but would keep the district court decision invalidating Prop 8's ban on same-sex marriage. In this scenario another case with different petitioners could come before the court in a few years.
In a second scenario, the Court could dismiss the case entirely due to their inability to reach a majority. It looks like this is Kennedy's move and Goldstein seems to think Justice Sotomayor will join him in this view. If other liberal justices follow suit, the case will be dismissed and the ruling would leave the Ninth Circuit Court's decision in place and the same-sex marriage ban would still be unconstitutional.
Both scenarios are a step forward for marriage equality, although neither is a particularly huge moment for advocates of equal rights. Basically, the Supreme Court won't weigh in until they feel the rest of the public has had time to catch up with the increasingly popular opinion that marriage is a basic right that should be available to all couples. If the case is dismissed, it is very likely individual states will continue marching towards marriage equality with their own legislation.
Last month, the Obama administration also urged the Supreme Court to strike down Prop 8 while also allowing the individual states to maintain regulation over the institution of marriage. In effect, Obama urged states that already recognize all the benefits and privileges of marriage for same-sex couples in the form of "civil unions," to go one step further and allow those couples to be married.
Tomorrow morning, the court will hear two hours of arguments on the Defense of Marriage Act.