Washington, D.C.—The Supreme Court heard oral argument today on California’s 2008 ballot initiative Proposition 8, which amended the state constitution in order to forbid gay marriage. The upshot appears to be that while a majority of the Court believes Prop. 8 to be misguided, including both the four liberal justices and Justice Anthony Kennedy, those justices are not willing to strike Prop. 8 down as unconstitutional and therefore legalize gay marriage in all 50 states. As Justice Kennedy declared in perhaps the most significant statement of the morning, this case asks the Court “to go into uncharted waters.”
Kennedy’s comments are certain to disappoint gay marriage advocates. As the author of the Court’s rulings in both Romer v. Evans (1996) and Lawrence v. Texas (2003), Kennedy is one of the Court’s strongest voices in favor of gay rights. Yet he gave no indication this morning that he saw the case against Prop. 8 as a proper vehicle for establishing a sweeping win for gay marriage. In addition to referring to the “odd” rationale of the federal appellate court ruling against Prop. 8, Kennedy wondered whether the Supreme Court should have even agreed to hear the Prop. 8 case in the first place. “I just wonder,” Kennedy said, “if the case was properly granted.”
For the Court’s liberals, on the other hand, the main impediment to legalizing gay marriage nationwide appeared to be the question of jurisdiction. Because the state of California announced that it would no longer defend Prop. 8 in court, the law’s legal defense was taken up by a group of individuals who had supported the original ballot initiative. So in addition to the constitutionality of Prop. 8, the Supreme Court also considered today whether or not those ballot supporters possessed the legal standing to defend the law.
Justice Ruth Bader Ginsburg set the skeptical tone right from the outset. “Have we ever granted standing to proponents of ballot initiatives?,” she asked, knowing that the answer would be “no.” Justice Elena Kagan promptly followed up. “Could the State assign to any citizen the rights to defend a judgment of this kind?” she questioned, her tone suggesting that she thought not. Chief Justice John Roberts also voiced skepticism, declaring at one point, “a State can’t authorize anyone to proceed in federal court...I don’t think we’ve ever allowed anything like that.”
Taken together, the combination of Kennedy’s hesitation about entering “uncharted waters” and the apparent liberal consensus on standing means the Court is unlikely to rule on the constitutional merits of Prop. 8 and will instead limit its decision to the particular circumstances present in California. That may still mean the legalization of gay marriage in the Golden State, but the ruling won’t go any further than that.
Watch Matt Welch interview Damon Root on today's oral argument: