The scene at the U.S. Supreme Court recently is a sure reminder that many people see the dispute over same-sex marriage rights as the most important civil rights case of this generation. Yet, not everyone sees the effort to secure marriage equality as a major civil rights struggle. Among this group may well be a majority of the justices on the Supreme Court.
People started camping outside the Supreme Court building four days before arguments in the hope of being part of history, despite freezing temperatures, rain and even snow. There was a long line hoping to catch even a three-minute glimpse of the oral arguments. Indeed, seats to the Proposition 8 argument were said to be going for $6,000, although ethical obligations kept me from testing this proposition.
Outside the courthouse, I met folks who, knowing they would be unable to get one of the limited seats inside the courtroom, nevertheless took off days from work to travel across the country just to lend support to the cause. They just wanted to be part of something they saw as special and important. The mood was hopeful and even joyous notwithstanding the chilly temperatures. Some outside the courthouse told me that they felt sure that the Supreme Court, like public opinion, would support marriage equality rights.
Opponents of equal marriage rights for gays and lesbians were present in large numbers as well, mobilizing their forces to participate in a sizable march and rally on the first day of oral argument. They, too, knew that what was happening at the court was something highly significant.
From the start of the oral arguments, however, the justices appeared in no mood to view this as a far-reaching civil rights debate begging for resolution. Instead, many of the justices seemed to just wish the issue of marriage-equality rights would just go away. And they may well be working right now on ways to get their wish.
It is often foolhardy to predict the outcome of a Supreme Court case based on the nature of the oral argument which, of course, has not dissuaded pundit after pundit from doing so. I attended the oral argument in Lawrence v. Texas, the case in which the court struck down the nation's sodomy laws in 2003, and left with absolutely no idea of how the justices would ultimately rule. Nor did I leave with any sense of Justice Anthony Kennedy's position despite his active questioning, let alone with any inkling that he would ultimately author the court's most important and expansive gay rights decision.
Nevertheless, there are some strong hints from the oral arguments about the likely resolution of the constitutional challenges to Proposition 8 and to the Defense of Marriage Act, even though anything is possible. It quickly became quite evident in the oral arguments that the court is not going to give the folks gathered outside the courthouse the broad and far-reaching marriage equality decisions for which most of them are hoping. One of the few areas of agreement among the otherwise badly divided court is an unwillingness to require all states to permit gays and lesbians access to marriage.
The public is about evenly divided on marriage equality rights with a clear trend favoring such rights and the Supreme Court, which tends to be a cautious body, rarely wants to get ahead of public opinion on hot button issues.
Like many others, I had wondered why the Supreme Court had agreed to hear the Proposition 8 appeal because the lower court opinion had been crafted narrowly to apply only to California. When Justice Kennedy and Justice Sonia Sotomayor suggested during oral argument that the court may have made a mistake to hear the case in the first place, I was startled and pleased.
It takes only the vote of four of the justices for a case to be heard, but it takes five votes for a party to prevail. So, despite Justice Antonin Scalia's contention that it is too late for the court to punt, it is quite possible that the majority of the justices will decide to allow the U.S. 9th Circuit Court of Appeals' opinion to stand by refusing to rule on the appeal. Should this happen, Proposition 8 is dead and California's gay and lesbian couples will be able to start marrying again.
There are other possible approaches the court may take to avoid a broad ruling on marriage equality. For example, the court could strike down Proposition 8 by concluding that those bringing the challenge lacked the legal right to do so, finding they lacked standing to bring the claim because they did not suffer any specific injury. Some but seemingly not most of the justices expressed the view that the Proposition 8 proponents lacked standing. Or, a majority of the justices could agree with the 9th Circuit that Proposition 8 cannot be upheld because California has no valid reason to limit access to marriage to heterosexuals in light of the state's virtually identical treatment of same-sex domestic partnerships and heterosexual marriages. These approaches too would mark the end of Proposition 8 but would not affect the laws in other states.
Similarly, the challenge to the part of the provision of the Defense of Marriage Act that bars the federal government from providing legally married gay and lesbian couples federal benefits will likely be decided on narrow grounds. Either the court will determine that the handful of Congressmen defending DOMA lack legal standing to do so or a majority of the justices will conclude that Congress can show no real justification to treat legally married same-sex couples differently than legally married opposite-sex couples. Again, the court will likely sidestep the more far-reaching issue of whether some form of heightened scrutiny applies to laws that discriminate against gays and lesbians.
It likely will not be until June that the court shares its resolution. While there is surely room for surprise, it is likely that the court will issue narrow rulings that reserve for another day the broader and thornier constitutional issues. This is not what most of those outside the courthouse hope for, but for now it appears that a narrow ruling striking down Proposition 8 and DOMA is the most they can expect.
Lawrence C. Levine is a law professor at University of the Pacific McGeorge School of Law.