Not There Yet

by Dale Carpenter on March 26, 2013

Ten years ago today, I attended the Supreme Court oral argument in Lawrence v. Texas. Then, the constitutional argument had been honed to make it clear to the Court that striking down the Texas Homosexual Conduct law would be following the nation, not leading it. Then, the path to eradicating sodomy laws had been trod for 40 years, as state after state abandoned the criminalization of sexual intimacy among same-sex couples. Then, the state had no defense of its law except that a majority preferred it that way. Then, the gay-rights advocate was masterful, both passionate and deeply analytical, stumbling only briefly over one tangential question. Back then, while there was no certainty about the outcome because the swing Justices (Kennedy and O’Connor) had given nothing away, there was jubilation among gay-rights advocates that the Court would strike down sodomy laws.

The contrast to today’s oral argument in Hollingsworth v. Perry, which I also attended, could hardly be more vivid. Today, several Justices seemed to think that a constitutional resolution would be leading the nation, not following it. And it would be doing so, asserted Justice Alito, to end a debate over something that was newer than cell phones and the Internet. Today, opponents of gay marriage could raise vague doubts about the uncertainty in the “sociological evidence” on the effects of same-sex marriage, a point that Justice Kennedy reiterated (so much for the trial in the district court, whose findings weren’t even mentioned today). Unlike ten years ago, they could claim that “caution” alone was reason enough to go slowly. Today, the gay-rights advocate was on a mission, as he has been for four years, to strike a decisive blow for freedom and equality, but delivered an argument that was more rhetorical than deeply substantive. He stumbled, not over trivial questions, but over a seemingly obvious and important one: How does the Court decide when a liberty claim should be constitutionalized? When, in the words of Justice Scalia in the most heated exchange of the day, did excluding same-sex couples from marriage become unconstitutional? Today, while Ted Olson was better than his opponent, there was no historic mismatch between advocates, as there had been ten years ago. Today, as the crowd exited, there was palpable anxiety among same-sex marriage supporters, many of whom who were stunned that there weren’t at least five Justices who saw the justice of the cause. The perceived swing vote in the case, Justice Kennedy, was concerned that the Court would have to cast aside 2,000 years of history. He also waived away any comparison to bans on interracial marriage, a remark that disquieted the audience.

In the end, as is usually the case, the oral argument probably won’t have made the difference. This was simply a Court not yet ready to declare a right to same-sex marriage, no matter how effective the oral advocacy. Still, it was a shame that today’s argument did not focus on sexual-orientation discrimination, or possibly even sex discrimination (one argument to which Justice Kennedy seemed receptive). Charles Cooper, defending Prop 8, conceded that there was not another instance in which discrimination against gays and lesbians would even be rational. That opening went unexploited. In fact, therein lies an answer to Justice Scalia’s question about when it became unconstitutional to exclude gay couples from marriage. The answer is not found in fundamental rights, the favored path of today’s marriage litigants, but in the Equal Protection Clause, whose application has long been understood to evolve as our understanding of what constitutes purposeless and oppressive discrimination evolves.  Almost no discrimination against homosexuals would have been “unconstitutional” in 1791 or 1868, according to courts then constituted.  Today, even the leading opponent against same-sex marriage can’t say the same.

Here are some quick impressions, based on the oral argument, about what the Court is likely to do and likely not to do:

(1) There will be no sweeping 5-vote declaration of a fundamental right to marry for same-sex couples, and no five-vote majority to declare the exclusion of gay couples unconstitutional on Equal Protection grounds. There may be four Justices willing to say so, but Justice Kennedy is just not there yet. It’s clearer now than it was even yesterday that he thinks there’s a big difference between criminalizing private sexual conduct and promoting same-sex unions to equal status in marriage. The quest for a nationwide right to same-sex marriage, begun when this litigation was filed over the strong objections of gay-rights groups in 2009, is not likely to end successfully in this case.

(2) There will probably be no “California only” answer from five justices, striking down Prop 8 alone. Justice Kennedy dismissed that possibility as “odd.” Chief Justice Roberts was disdainful. The “Dear Justice Kennedy” opinion of the Ninth Circuit had no supporters today.

(3) There’s even less chance that there will be a “nine-state” decision, striking down only the marriage laws of the states that grant civil unions to same-sex couples, but not the status of marriage. Even some of the more liberal Justices were skeptical, quite reasonably, that a state might be “punished” for giving same-sex couples full rights except for the title of marriage. The Solicitor General’s position that the Court could order a nine-state answer now and deal with the other states at a later date sounded like a constitutional theory that had not yet evolved.

(4) The best possible outcome for same-sex marriage advocates at this point is probably to have the Court dismiss the case on standing grounds, vacating the Ninth Circuit’s opinion, and leaving the District Court’s order in place. The Prop 8 proponents have never been able to show a particularized, personal injury from the recognition of same-sex marriage. And, despite what the California Supreme Court may have decided for state law purposes, ballot proponents do not stand fully in the shoes of the state in defending the law. If the people of California don’t like the fact that their Governor and Attorney General refuse to enforce their laws, they have a political remedy. Or they can adopt a procedure for having a stand-in appointed.  But that’s an internal state governance problem; it doesn’t create Article III standing.

Chief Justice Roberts seemed sympathetic to this line of reasoning – indeed, he prodded the reluctant lawyers on both sides to address it – as did several other Justices. But surprisingly, perhaps, Justice Kennedy was ambivalent: arguing at one point that the petitioners had standing by virtue of being the “official” defenders of the proposition, but arguing at another point that perhaps the Court should dismiss the case on jurisdictional grounds.

I could see a split decision, with three Justices willing to uphold Prop 8 on the merits (Scalia, Thomas, and Alito), at least four Justices (Roberts, Sotomayor, Kagan, and Breyer) and possibly six (add Kennedy and Ginsburg) voting to dismiss the case on some variant of jurisdictional grounds, and/or four willing to strike down Prop 8 on the merits if pushed to do so (Sotomayor, Kagan, Breyer, and Ginsburg). That means that we’ll most likely get a jurisdictional decision, with no clear win or loss for the ultimate cause, a vacated Ninth Circuit decision, and some large questions about the scope and effect of the District Court’s order. More litigation, and political struggle, to come.

{ 23 comments }

Tom Scharbach March 26, 2013 at 7:29 pm

I could see a split decision, with three Justices willing to uphold Prop 8 on the merits (Scalia, Thomas, and Alito), at least four Justices (Roberts, Sotomayor, Kagan, and Breyer) and possibly six (add Kennedy and Ginsburg) voting to dismiss the case on some variant of jurisdictional grounds, and/or four willing to strike down Prop 8 on the merits if pushed to do so (Sotomayor, Kagan, Breyer, and Ginsburg).

I agree with the analysis, but I think that the devil will be in the details — the nature of the “variant of jurisdictional grounds”. Ginsburg and Kennedy seem to be signalling that a decision on the merits is premature, a view with which I agree, but I didn’t see much that made me think that either wanted to deny standing.

I wouldn’t rule out a dismissal as improvidently granted. That seems to be where Kennedy is signaling he thinks the Court should go, and Ginsburg seemed to be doing that, too, although less directly. DIG would dispose of the case without the Court having to address the constitutional issues while letting the 9th Circuit decision stand, a result that would likely appeal to Kennedy and Ginsburg, as well as Sotomayor, Kagan, and Breyer if a decision can’t be reached on the constitutional issues.

A standing decision poses real pitfalls for the Court.

First, establishing precedent that ballot initiative proponents don’t have standing to defend in cases where the state refuses to defend will be of application outside the case, and may lead the Court down a road it doesn’t want to go for the future.

Second, the legal aftermath of a standing decision aren’t clear. If the Prop 8 Proponents don’t have standing to appeal, they didn’t have standing to defend at trial, either. A standing decision could lead to abrogating both the 9th Circuit decision and the District Court decision. Whether that’s how it ended up or not, it is almost certain that there would be a legal knife fight over the status of the District Court’s decision, leading to another round of battle.

In any event, Justices Breyer and Sotomayer pushed Olsen hard on standing, and I didn’t see much enthusiasm for that resolution, so I wouldn’t count them chickens, as it is said.

I wouldn’t be surprised to find out that the Justices couldn’t form a majority around stranding or any decision on the merits. To me, that means DIG, however much the Justices (and in particular the Chief Justice) might want to avoid that result.

JohnInCA March 26, 2013 at 8:39 pm

Not sure you’re right on the “legal aftermath” part. IIRC, when Judge Walker first heard the case there wasn’t a question of standing for some reason or other. The big standing question popped up in the first appeal, where the fact that there was no harm to proponents if Judge Walker’s decision stood proved a barrier to them having standing to appeal it.

Tom Scharbach March 26, 2013 at 9:13 pm

Not sure you’re right on the “legal aftermath” part.

I’m not entirely sure, either John. Standing issues are very technical and I’m no expert. But for what it is worth, here’s why I said what I said:

I’ve seen legal commentators raise a lot of issues today surrounding the status of the District Court decision in the event that the Court decides on standing. The problem is not standing rules per se, but the ways in which the standing rules might play out given the peculiarities of this case (constitutional case, with implications if not application beyond the parties, non-governmental parties with no or questionable standing defending at trial, and so on).

In any event, here’s what I’ve seen today on standing:

First, I’ve seen several analyses’ that suggest that the District Court decision might be vacated in the particular circumstances of this case, although the majority opinion seems to be that the decision would not be vacated. Many (in both camps) seem to think that there is a fair chance that the question would have to be litigated.

Second, there seems to be a question about the scope of the District Court ruling in the event that the Court dismisses the case on standing. The 9th Circuit decision would be vacated, and while the District Court decision would likely remain in place, the majority view seems to be that it would apply — arguably, at least — only to the two couples and the two counties involved in the case, rather than statewide.

Most commentators seem to think that there would almost certainly be additional litigation about that question — whether and how the District Court decision (and hence Proposition 8) would be applied elsewhere in the state.

In either situation, it seems to be as likely as not that any lower court decision clarifying the situation would be appealed, and the whole ball of wax could end up back in the 9th Circuit and the Court for another go-round.

I was surprised by the turn of events in the argument today, and particularly by the shifting alliances toward the end of the argument. I don’t know what it means. Perhaps the best thing for me to say at this point is to say that I agree with Kevin Walsh, a law professor following the case, who said “If you get a straight answer from a lawyer about what’s going to happen, I’d love to know.” I’m hoping that ScotusBlog will hop on these questions, and give us all a better feel.

At this point, I hope to see a DIG, which would have the effect of keeping the 9th Circuit decision in place without the Court affirming the decision. Standing seems to be a bag of worms.

Bruno March 28, 2013 at 1:37 am

Re: Standing. The district court case defendants had standing because they included Gov. Schwarzenegger and AG Brown. After the ruling in that case, both bailed, thus the standing issues for appeal.

Re: Jurisdiction. This may be a real problem if only the district court ruling were to stand. It might have to be assessed whether the ruling applies to only the plaintiffs as you mentioned, only the Northern District (roughly the Oregon border to Monterey, coastally), or the entire state. It would be real real interesting and might involve some additionally time-consuming litigation. I’d also be interested to see how Gov. Brown and AG Harris immediately interpret it in terms of applying the law.

Real hopeful at least the 9th’s decision is allowed to stand somehow.

Art Leonard March 26, 2013 at 9:57 pm

Standing under Article III is about the party who brought the case, not the party who defends. Standing at the trial court depends upon the plaintiff. Of course, the plaintiff must sue an appropriate defendant (or defendants), and in this case the plaintiffs did – the clerks who denied their licenses, the head of the relevant state agency, the state attorney general and the governor. The standing issue first arose on appeal, because in order for the appellate court to have jurisdiction, the appellant must have standing to appeal the case. Thus, if the Court decides this case on standing grounds, the 9th Circuit decision gets vacated because the appellants lacked standing, but the district court decision remains intact. That leaves a question about the scope of the district court’s order… does it apply just to the plaintiffs’ right to get marriage licenses, or does it broadly require California to resume issuing marriage licenses to same-sex couples? The answer to this is not totally clear.

If the Court were to dismiss the writ as improvidently granted, the 9th Circuit decision remains in effect, the stay gets lifted, and same-sex couples start marrying in California. But the 9th Circuit’s decision would have no binding precedence outside of the 9th Circuit, and would lack the imprimatur of an affirmance by the Supreme Court. The Court would thus escape rendering a decision on the merits, and would escape rendering a decision on standing that it might later regret.

Art Leonard March 26, 2013 at 10:01 pm

Dale, there were several references to the trial record, by Cooper and by Olson. There were also references by Cooper to “facts not in evidence,” of course, and these references to sociological research struck me as a bit cock-eyed. But then we are assured by an august authority on the matter (The Sphinx-like Justice Thomas) that oral argument rarely matters, anyway. It would be nice had Olson delivered as smooth an argument as the Court heard in Lawrence, but we have to remember that the Court heard the ultimately smooth and suave argument from Larry Tribe in Hardwick and it didn’t make any difference to the outcome in that case. These cases sometimes turn on the smallest things. Had Justice Powell’s gay clerk come out to him when they were discussing the case in chambers, it could have made all the difference in the world.

Jorge March 26, 2013 at 11:19 pm

But then we are assured by an august authority on the matter (The Sphinx-like Justice Thomas) that oral argument rarely matters, anyway.

Have you SEEN the list of briefs on these two cases on supremecourt.gov?

Jorge March 27, 2013 at 12:59 am

Just finished reading the transcript up to the end of the Solicitor General’s oral argument.

I actually think the Prop 8 proponent had the best argument on standing, and on the merits too for the most part. At least he was able to recover every time his position got shot full of holes, albeit with paper-thin arguments, except for one time. But that was the one time that counted–the topic of heightened scrutiny.

Jorge March 27, 2013 at 1:04 am

Wait, wait, never mind. I don’t know…

Mr. Olson did even worse on that argument. But it was only Justice Scalia who impeached him. Who knows what the full Court thinks.

Houndentenor March 27, 2013 at 1:01 am

I always thought it was overly optimistic to believe that SCOTUS would declare gay marriage from coast to coast. I mostly agree with Dale’s analysis, but I would like to note that court-watchers’ predictions lately have been way off. See the Obamacare decision as just one example. The details will matter and mostly that will hang on what certain justices have to agree to in order to form a majority opinion. It might be fun to speculate but at this point I’m not sure even the justices or the clerks know what those might be. We’re going to have to wait.

Tom Scharbach March 27, 2013 at 9:23 am

A few non-legal observations:

First, the brightest spot in the oral argument, for the long run, were Justice Kennedy’s comments about children, and several other observations/questions that make it clear to me that Kennedy “gets it” about gays and lesbians, and why we seek marriage equality. Kennedy will be with us when the Court the right case is presented a number of years down the road.

Second, the desperation of the anti-marriage movement and the emptiness of their arguments were once again put on display. Cooper began his argument by trying to limit marriage to being a vessel for procreation, and was literally laughed at by the audience as Justice Kagan demolished his argument. He moved on to try to argue that some sort of undefined harm would come to children raised by gays and lesbians, harm so nebulous that even Justice Scalia, no friend of ours, grew impatient: “Mr. Cooper, let me — let me give you one — one concrete thing. I don’t know why you don’t mention concrete things.” Cooper then moved on to an argument that keeping gays and lesbians from marrying would somehow keep straight men more faithful to their wives and children, which took him nowhere at all. And finally, he resorted to something he called “the marital norm”, alluding to the reasoning of state courts in Indiana, New York and Washington state that straights are so irresponsible toward the children that they spawn that they (unlike gays and lesbians, who are responsible parents) need to have their own, special “institution of marriage” to entice them into actually raising their children. By the time Cooper got to rebuttal, he was reduced to making the implicit argument that the reason the Court should hold off on a ruling is that the country’s attitudes toward marriage equality are moving so fast that the problem will take care of itself without intervention from the Court.

What this makes clear to me is that there is no way to go but further down for the anti-marriage movement.

As I thought about this overnight, it occurred to me that we’ve got five (Kagan, Sotomayer, Breyer, Ginsburg and
Kennedy) in our long-run camp, and probably Roberts as well. All except Kagan seem to have reservations about moving now, but that might be to our political advantage.

We’re winning the fight with the American people, and we grow stronger in that regard every year. That won’t change. In a few years, we’ll have picked up another 5 or 6 states, and we will be approaching the 50% mark, in terms of the percentage of Americans who live in states where marriage equality is a fact on the ground. That will set us up for a national decision.

Meanwhile the pain imposed by the “now you are married, now you are not” patchwork will get worse rather than better every year, and the need for the Court to step in will become more critical.

Gays and lesbians will bear the brunt of that pain, of course, but the situation will get increasingly intolerable for businesses as well. Can you imagine the HR problems that will be created as executives are moved around the county, and the companies have to adjust HR records, ERISA/pension policies, and the like from “married” to “single” to “married” again and again as executives and employees assigned in different locations?

With pain comes political pressure. It won’t be too long before the demand for marriage equality is coming from all over the place, politically.

Jorge March 27, 2013 at 7:21 pm

Second, the desperation of the anti-marriage movement and the emptiness of their arguments were once again put on display. Cooper began his argument by trying to limit marriage to being a vessel for procreation, and was literally laughed at by the audience as Justice Kagan demolished his argument.

Sorry, but I don’t agree. Mr. Cooper explained that 1) Not both parts of a straight 55 year old couple are infertile (or as Justice Scalia put it, Strom Thurmond–an infamous flirt–was not the chairman of the Senate committee when Justice Kagan was confirmed), and thus 2) there is still some basis for promoting marital monogamy in such a couple for the purpose of regulating procreation.

Justice Kagan did challenge him best–I’d point out the part where she asked, okay, so we get that your argument that gay marriage isn’t very helpful to this state interest, but it is harmful? However I think Mr. Cooper’s answer of “We don’t know” really is enough.

JohnInCA March 27, 2013 at 8:49 pm

I’m kinda confused…

Why doesn’t that “we don’t want people in commited relationships slutting it up, and marriage somehow helps this” idea apply to gay people? Or for that matter… bi people currently in a homosexual relationship?

And why, again, wouldn’t that apply to married gays? Yeah, the chances of them slutting it up with someone of the opposite sex isn’t as high, but it’s not like preventing pregnancy is the only reason monogamy is more stable.

Tom Scharbach March 28, 2013 at 7:41 am

Justice Kagan did challenge him best–I’d point out the part where she asked, okay, so we get that your argument that gay marriage isn’t very helpful to this state interest, but it is harmful? However I think Mr. Cooper’s answer of “We don’t know” really is enough.

You got anything better?

The reason that the social conservative claim that marriage equality would harm “traditional marriage” is imploding in the courts is that social conservatives have no answer to Justice Kagan’s question. And the reason that they don’t have an answer is that there is none.

Try it yourself, Jorge. How is keeping Michael and me from getting married going to discourage straight men like Strom Thurmond from spawning an illegitimate child with a 16 year old, as he so infamously did? Or keep Newt Gingrich from sleeping with the next wife while still married, as he did in two marriages? Just tell me, in plain English.

It is a disconnect, which is why Cooper was confined to abstractions about “the marital norm”, blathering on until even Justice Scalia got aggravated about it: “I don’t know why you don’t mention concrete things.

Whatever else might be said about the wisdom of initiating the Prop 8 case, the case forced social conservatives to demonstrate that there is nothing behind the “marriage equality will destroy the institution of marriage” curtain. That’s the beauty of the judicial system — you can’t just make claims unquestioned, you have to back the claims up with evidence.

Bill O’Reilly, for once in his life, got it right: “The compelling argument is on the side of homosexuals. That’s where the compelling argument is. We’re Americans — we just want to be treated like everyone else. That’s a compelling argument, and to deny that you’ve got to have a very strong argument on the other side. And the other side hasn’t been able to do anything but thump the Bible.

Tom Scharbach March 27, 2013 at 9:37 am

BTW, an aside about DOMA and today’s argument. You’ll recall that my Congressman, Mark Pocan, and his husband Phil were married 6 or 7 years ago in Canada, and that the status of their marriage (married when they are in DC, not married when they are in Wisconsin, status “Who knows?” when Mark is in Washington and Phil tending the family business in Wisconsin) is a great example of DOMA’s insanity.

It’s even worse than that, it turns out. Mark was interviewed yesterday and it turns out that his marital status changes even in DC. When leaves for work from his apartment, he’s married, but when he gets to work in the Capitol, he’s not. Phil is Mark’s husband right up to the Capitol door, but becomes a “designee” the minute Mark walks into the building.

Jim Michaud March 27, 2013 at 11:29 am

My question: if the justices are now so squeamish on this, then why the hell did they agree to hear this in the first place? Why didn’t they just from the get go tell the petitioners to go pound sand?

Tom Scharbach March 27, 2013 at 11:37 am

That seems to be Kennedy’s question.

As I understand it, the unofficial “rule of thumb” the Court follows is this: If four Justices want to grant cert, the Court accepts the case for review.

We can be pretty certain that Scalia, Thomas and Alito wanted to grant cert in hopes that the case could be used as a vehicle to set back marriage equality. The fourth cert vote was probably Roberts or Kennedy. But we don’t know until an insider spills the beans to a historian.

If it was Kennedy, he seems to be having a serious case of “buyer’s remorse” right now.

Bruno March 28, 2013 at 1:42 am

I’d bet on Roberts. In fact, he seems more hostile to any notion of marriage equality than I imagined. Kennedy very obviously didn’t want to touch this case with a 10 foot pole.

Tom Scharbach March 28, 2013 at 6:43 am

I’d bet on Roberts. In fact, he seems more hostile to any notion of marriage equality than I imagined.

I was stunned by his performance in the DOMA orals. Robert’s hostility shows through, big time. I hadn’t expected it.

I’d bet on Roberts.

After thinking about Robert’s “you are just after the label” line of questioning in the Prop 8 orals in light of his DOMA comments, I’d agree. I’d passed that line of questioning off as probing the extent of Olsen’s thinking, but I’ve changed my mind. I think that it reflected his thinking.

Chief Justice Roberts seems clueless about the lives of gays and lesbians, our struggle for equal treatment under the law, and our motivations for seeking equal treatment. Hostile, and more than a little bit nasty, too.

Aubrey Haltom March 27, 2013 at 11:51 am

Maureen Dowd has a good op-ed piece in today’s NYT. She notes how the justices were not so squeamish with other rulings.

But I’d like to ask someone about an exchange between Ginsburg and Verrilli. I didn’t like what I read – as I understand the exchange.

Maybe Tom Scharbach, or any other person here with more knowledge than me on the subject (that’s a blanket invitation, btw) could help clarify:

“The Obama Administration’s argument ran into considerable skeptical questions from both wings of the court. Solicitor General Donald Verrilli Jr. argued that same-sex marriage should be imposed on those states that already grants all of the benefits and duties of that status through their recognition of civil unions—nine states.

“So a state that has made considerable progress has to go all the way, but a state that has made no progress doesn’t have to do anything at all?” asked Justice Ruth Bader Ginsburg, who along with Justice Stephen Breyer, saw that argument as “internally inconsistent.”

But Verrilli said, “We’re not prepared to close the door (on states that might have legitimate interests not yet known).” The Proposition 8 proponents have offered no state interest to justify the exclusion of gay couples when the state already gives them all of the benefits of the marriage status, he argued.”

I interpret this in a fairly straight-forward way (pun, ok).

The Obama admin is saying that there is no federal, constitutional right to ssm, because there might be “legitimate reasons” for states to ban ssm.

How else does one interpret that exchange?

I think I asked you about the possibility of some similar type of exchange a few days ago, Tom.
But anyone’s explanation would be welcome.

Tom Scharbach March 27, 2013 at 2:00 pm

The Obama admin is saying that there is no federal, constitutional right to ssm, because there might be “legitimate reasons” for states to ban ssm.

How else does one interpret that exchange?

I think that you have the essense of the government’s argument right, Aubrey, but I think that the argument is more subtle than appears from the oral arguments.

Here’s an attempt at clarifying:

Under the Constitution, marriage is a “reserved power” historically, and with respect to marriage, states are soverign. Congress has no constitutional power to determine or abrogate state law concerning marriage. Congress does have the constitutional power to create federal laws (e.g. differential tax treatment) that are related to marriage, but does not have the constitutional power to dictate to the states. (Today’s DOMA case tests the extent of that “related to marriage” test: “Does Congress have the constitutional power to pick and choose among valid, legitimate state marriages for the purposes of federal law?”)

However, the courts have constitutional power to strike down any state law (including state marriage laws), that violates the Constitution.

To date, no federal court has issued a ruling that all state marriage laws restricting marriage to heterosexual couples violates the Constitution. Federal courts have ruled in a few cases with particular facts (this case is an example) but no federal court has ruled that the Constitution requires that the “fundamental right” of marriage be extended to same-sex couples.

At present, accordingly, there is no federal (in the sense of the constitutional power of the federal government to make laws determining who can get married or not) or constitutional (in the sense that the no federal court has made a final determination with respect to the Constitution) right to same-sex marriage. That’s where the law is right now, constitutionally.

The Prop 8 case tests the constitutionality of a state law where four circumstances are present: (1) the California Supreme Court found a right to marriage equality under the California constitution, (2) the right was subsequently abrogated by constitutional amendment, (3) California law provides for marriage-equivalent civil unions, and (4) at trial in the federal District Court, the state was unable to offer any “legitimate reasons” for either (a) abrogating the right to marriage equality by constitutional amendment, or (b) denying marriage while permitting marriage-equivalent civil unions.

The thrust of the government’s argument is that, in those particular circumstances, the state’s constitution and laws violate the Constitution, specifically the Equal Protection clause. But the government does not assert that it is impossible for a state to have “legitimate reasons” for discriminating between opposite-sex and same-sex couples with respect to marriage.

The argument is a technical and limited argument. The Solicitor General’s office was, technically, correct in asserting that the question of whether or not a state can come up with “legitimate reasons” has yet to be tested under the Constitution, and in limiting the government’s argument to the particular facts of the Prop 8 case, the government was able to dodge the question of whether or not there is a 50-state constitutional right to marriage equality.

But note what the government’s argument did not do — it was carefully drawn so as to not preclude the government from making the 50-state argument in a future case.

All that having been said, the so-called 9-state “solution” leaves a bad taste in my mouth. It has always seemed to me to be the wrong thing to do, legal stuff aside.

As one of the Justices asked (my paraphrase), “Is there a principled way in which we can stop short of a 50-state ruling?” The 9-state “solution” is a legal abstraction that can be used to create a legal “stop”, but there is something wrong about penalizing states that are trying to do something decent, even if by doing so they are creating inequality. To my mind, the 9-state “solution” isn’t principled.

Aubrey Haltom March 27, 2013 at 12:02 pm

Just in case anyone wants a quick read. An enjoyable Dowd op-ed:

http://www.nytimes.com/2013/03/27/opinion/dowd-courting-cowardice.html?partner=rss&emc=rss&wpisrc=nl_wonk&_r=0

And giving Verrilli ‘equal time’ – here’s his reply to the thought that this is going too fast:

“Donald Verrilli Jr., the U.S. solicitor general arguing on the side of same-sex marriage, told the justices, “There is a cost to waiting.” He recalled that the argument by opponents of interracial marriage in Loving v. Virginia in 1967 was to delay because “the social science is still uncertain about how biracial children will fare in this world.” “

Mark F. March 27, 2013 at 3:10 pm

My understanding is that the court has never ruled that one state has to accept the marriage of another. But generally they almost always do, as a matter of practice. Many states don’t allow cousin marriages, but they always recognize cousin marriages from states where they are legal.

However, couples can and do have problems getting divorces because of different requirements in various states. There are varying residency requirements, for example, and not every state has “no fault” divorce.

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