Anthony Kennedy wonders if SCOTUS should rule on Proposition 8

“I just wonder if the case was properly granted,” he said during oral arguments

Published March 26, 2013 9:46PM (EDT)

Anthony Kennedy, the Supreme Court justice widely considered to be the swing vote on the forthcoming decision on Proposition 8, wondered during Tuesday's oral arguments whether the Court should have agreed to hear the case in the first place.

“I just wonder if the case was properly granted,” he said, referring to the Court's decision to take up the case. Kennedy noted that the case takes the Court into “uncharted waters," and twice asked if the justices should decline to rule.

For Supreme Court watchers, Kennedy is the closest thing to a bellwether for how the case will be decided, inasmuch as the Court's decision can be predicted at all. Lyle Denniston of SCOTUSBlog lays out some of the potential implications of a decision by the Court not to rule on the merits of the case:

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.  A decision like that, though, could take weeks or months to reach.

If the Court rules that the supporters of Proposition 8 lack standing in the case, the 9th Circuit's ruling would likely be vacated. This would effectively reinstate District Court Judge Vaughn Walker’s decision that the law violates the Equal Protection Clause and the Due Process Clause of the 14th Amendment -- a decision that may not affect any couples other than the parties to this case.

If, on the other hand, the Court decides that granting the review was a mistake, then the 9th Circuit's decision would stand, Proposition 8 would be overturned, and same-sex couples could get married again in California. But since the scope of the 9th Circuit's ruling was very narrow and limited to California -- which legalized gay marriage and then banned it by passing Prop 8 -- the decision would not impact any other states.

By Jillian Rayfield

Jillian Rayfield is an Assistant News Editor for Salon, focusing on politics. Follow her on Twitter at @jillrayfield or email her at

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