SCOTUS appears ready to punt on California’s Prop. 8


Posted by AzBlueMeanie:

Today the U.S. Supreme Court heard oral arguments in Hollingsworth v. Perry, the case involving a challenge to California’s Proposition 8 banning same-sex marriage. It appears as if pre-hearing legal analysis questioning whether the parties have proper legal standing to be litigants before the Court may carry the day after all. Justice Kennedy openly questioned "Why are we here?," indicating that the Court may punt on a decision on the merits and instead issue a procedural ruling.

The argument transcript is here (updated link). Argument audio  is here. (h/t

Tom Goldstein at has posted his first impression of The Proposition 8 oral argument:

Much will be written about the Proposition 8 oral argument.  The
bottom line, in my opinion, 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.

Several Justices seriously doubt whether the petitioners defending
Proposition 8 have “standing” to appeal the district court ruling
invalidating the measure.  These likely include not only more liberal
members but also the Chief Justice.  If standing is lacking, the Court
would vacate the Ninth Circuit’s decision.

The Justices seem divided on the constitutionality of Proposition 8
on ideological lines, four to four – i.e., all the members other than
Justice Kennedy.  For the more liberal members of the Court, there was
no clarity on how broadly they would rule.

But Justice Kennedy seemed very unlikely to provide either side with the
fifth vote needed to prevail.  He was deeply concerned with the wisdom
of acting now when in his view the social science of the effects of
same-sex marriage is uncertain because it is so new.  He also noted the
doubts about the petitioners’ standing.  So his suggestion was that the
case should be dismissed.

Lyle Denniston at shares Tom Goldstein's first impression of oral argument. Argument recap: On marriage, Kennedy in control:

Supreme Court Justice Anthony M. Kennedy, in an unusually candid process
of elimination of options in public, on Tuesday worked his way through
the ways for dealing with California’s Proposition 8 ban on same-sex
marriage and seemed strongly tempted to just take a pass.   He appeared
to be troubled about the Court entering “uncharted waters,” on the core
issue of who may marry, but at the same time, he also did not look
comfortable with any of the other, more limited options.  So he openly
wondered why the Court had agreed even to hear this case.

* * *

As Kennedy openly reacted to these proposals, he seemed to be losing
patience, and well into the argument said “there is a question whether
this case was properly granted” — that is, was it a mistake for the
Court to accept the Hollingsworth appeal for review.   The
lawyers at the lectern said it was a proper case that had been fully
litigated, but Kennedy did not drop the idea.

* * *

If the Justices, in the initial vote they will take on this case in
private later this week, do not find themselves with a majority on any
of the issues they canvassed, then they might well be looking for a way
out.  One way would be to find that the proponents of Proposition 8 did
not have a legal right to be in court to defend it, but even that was a
hotly disputed issue on the bench.  The other way out was directly
suggested by Kennedy, and pursued by him in more than a fleeting way:
dismiss this case as one that should not have been accepted.

Tom Goldstein speculates on what he believes is the likely outcome:

If those features of the oral argument hold up – and I think they
will – then the Court’s ruling will take one of two forms.  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 [upholding the District Court decision striking down Prop. 8].

(The puzzle will be what judgment the Court will enter if there are,
for example, three votes to dismiss as improvidently granted, two to
find no standing, three to reverse, and one to affirm.)

The upshot of either scenario is a modest step forward for gay rights advocates, but not a dramatic one.

As Lyle Denniston says, "a decision by a controlling number of Justices to end the case as
“improvidently granted” would be a way to avoid an even more widely
splintered decision that might settle nothing at all of constitutional
consequence on marriage."

Wednesday’s argument in the case of United States v. Windsor
(12-307) involves same-sex couples who are already legally married,
and the issue before the Court is whether the federal government can
legally deny them all of the federal benefits that go with marriage.  A decision on this narrow question is unlikely to address the broader question of equal
access to marriage.

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AZ BlueMeanie
The Blue Meanie is an Arizona citizen who wishes, for professional reasons, to remain anonymous when blogging about politics. Armed with a deep knowledge of the law, politics and public policy, as well as pen filled with all the colors stolen from Pepperland, the Blue Meanie’s mission is to pursue and prosecute the hypocrites, liars, and fools of politics and the media – which, in practical terms, is nearly all of them. Don’t even try to unmask him or he’ll seal you in a music-proof bubble and rendition you to Pepperland for a good face-stomping. Read blog posts by the infamous and prolific AZ Blue Meanie here.