Split decision on gay marriage?

Expect the Supreme Court to offer two very different rulings on Prop 8 and the Defense of Marriage Act

Kent Greenfield
December 10, 2012 9:58PM (UTC)

This article originally appeared on The American Prospect.

The American Prospect A shrinking violet the Roberts Court is not. Since the chief justice was confirmed in 2005 promising to call “balls and strikes,” the Court unleashed super PACs in its 2010 Citizens United decision, injected itself into the middle of a presidential campaign by taking on Obamacare earlier this year, and recently heard a case giving it the chance to cut back or end affirmative action. Under Roberts, the Court has a bit of a swagger. Bill Clinton might say they have some brass.

True to form, last Friday the Court agreed to hear two cases that could decide the central civil rights issue of our day: gay marriage. One of the cases concerns the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for purposes of federal law as between one man and one woman. The second focuses on the constitutionality of Proposition 8, the 2008 California referendum that banned gay marriage in that state.


Any Court watcher with a functional brain stem will tell you the cases will likely turn on the views of Justice Anthony Kennedy. That the Court voted to hear both cases leads me to fear that both the four liberals and the four conservatives believe that Kennedy’s vote is theirs for the taking. The problem is that while the liberals probably think he’s getable on the DOMA case, the conservatives believe he’ll end up on their side in the more important, and more dangerous, Prop. 8 case.

How do I figure? It takes only four votes among the Court’s nine justices to hear a case, and I’m assuming the four “liberal” justices—Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan—voted to hear the DOMA case. (Let me say here that only on this Court, the most conservative in modern history, would this moderate foursome be considered “liberal.” But I digress.) They can reasonably expect Kennedy, the Court’s usual swing vote, to side with them on this one. Kennedy sees himself as a champion of states’ rights, and he can likely be convinced that DOMA usurps the traditional role of states in defining marriage.

Moreover, Kennedy authored the Court’s two most recent opinions on gay rights: the 1996 case of Romer v. Evans, which struck down a Colorado constitutional amendment that forbade any city in the state from passing anti-discrimination laws for gays and lesbians, and 2003‘s Lawrence v. Texas, which struck down Texas’s anti-sodomy statute. They may have been a mush of logic and analysis, but they reached the correct result.


What’s more, a pro-equality ruling in the DOMA case would not risk political backlash. The federal government would merely have to recognize same-sex marriages where they already exist. The 41 states where they are not currently permitted would see no change at all.

The stakes are much higher in the Prop. 8 case. The suit raises the question of whether state bans on same-sex marriage violate the Equal Protection and Due Process clauses of the Constitution. If the Court decided that sexual orientation is a “suspect” classification under Equal Protection, or that denial of same-sex marriage is an infringement of a fundamental right protected by Due Process, it would cast doubt on every gay-marriage ban from Newport Beach to Norfolk.

The center-left justices probably want to avoid poking that bear, especially since there is much to be gained from doing nothing. If the Court had declined to hear the case, the lower court’s opinion allowing same-sex marriage would control in California, and the political upswing for gay marriage elsewhere would be left to continue apace.


My bet is that it was the conservative four—Chief Justice Roberts, plus Antonin Scalia, Clarence Thomas, and Samuel Alito—who wanted to hear the Prop. 8 case, especially after it became clear that the DOMA case had the votes to be heard. The last thing the Court’s conservative wing wants is to let gay rights achieve a huge victory with the DOMA case and to watch Kennedy again be anointed the Great Savior.

Putting Prop. 8 on the same calendar might be evil genius. Kennedy’s known as a hand-wringer, and the conservatives will argue that mandating marriage equality is going too far too soon. They will remind him of the backlash the Court suffered after Roe v. Wade, when the Court imposed its will on the two-thirds of states that did not permit abortion. They will rattle him with the possibility that a ruling in favor of same-sex marriage will open the door to polygamist or incestuous marriages.


In the end, the conservatives are willing to lose Kennedy on DOMA if he stays in the fold on Prop. 8, and Kennedy’s personality could lead him to split the baby in exactly that way. I can practically hear him now, announcing the opinion in both cases that the question of marriage should be left to the states, and the courts and Congress should both stay out. Kennedy could well be the only justice who thinks the two cases should come out differently, but because his vote will be the fifth for both sides, his solitary view will become the law.

Such an outcome would be a disaster, since the DOMA victory would pale in comparison to the Prop. 8 defeat. If the federal constitutional arguments are shut down, marriage equality would depend almost entirely on results at the ballot box. That might be a winning strategy in some of the nation, but it would doom it as a real possibility in most states for years to come. (One reference point: Tennessee’s state senate passed a bill last year banning teachers and students from talking about gay marriage in schools. I would think the real thing is a way off yet.) A Prop. 8 failure could end up as the functional equivalent of Plessy v. Ferguson, the 19th Century case where the Court said it wasn’t its place to enforce equality between the races. States were left to enact Jim Crow, and Plessy stayed on the books for almost 60 years.

There is hope, however. Planted in the Court’s Prop. 8 order from Friday is an instruction that the parties brief and argue a procedural question, namely whether the case should be heard by the Court at all. California Attorney General Kamala Harris, a Democrat, has refused to defend Prop. 8, so the lower courts allowed the initiative’s proponents to stand in on appeal. But the Supreme Court has expressed doubts in the past as to whether such advocates would have standing—the right to appear in court


The upshot is that if Kennedy can be persuaded that the Court does not have jurisdiction to hear the Prop. 8 appeal, then the four to his political left will almost certainly join him. That will mean that the original trial court decision striking down Prop. 8 would be reinstated. California would get gay marriage, but the ruling would have no applicability elsewhere. No one would be satisfied.

I would take it anyway. It would certainly not be Brown. But it wouldn’t bePlessy, either.

Kent Greenfield

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Defense Of Marriage Act Doma Elena Kagan The American Prospect The Supreme Court

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