A quick survey of the press coverage of yesterday's oral arguments in the California gay marriage case reveals multiple appearances of the word punt. Politico asked, "Will Supreme Court Punt on Gay Marriage?" The Village Voice announced, "Supreme Court Hears Arguments Against California's Same-Sex Marriage Ban, Punts." Townhall.com observed, "Early Indications: SCOTUS to Punt on Gay Marriage?"
Let's assume the Supreme Court does indeed avoid reaching the constitutional question of whether or not Prop. 8's ban on gay marriage violates the Equal Protection Clause of the 14th Amendment. What happens then?
One possibility is that the Supreme Court rules solely on procedural grounds. Under this scenario, the Court would find that the supporters of the original Prop. 8 ballot initiative have no legal standing to defend the law in court, thereby voiding the decision last year by the U.S. Court of Appeals for the 9th Circuit that did recognize their standing and then struck down Prop. 8.
But that approach raises several new questions of its own. Does District Court Judge Vaughn Walker's earlier ruling against Prop. 8 remain in force (since the state of California, which has standing, was still defending the law at that point in the litigation)? If so, does that mean gay marriage is legal in California? Or does it mean Judge Walker's ruling applies narrowly, impacting only the specific same-sex couples that brought the original suit?
Alternately, the Supreme Court might follow the lead of Justice Anthony Kennedy. During Tuesday's oral arguments, Kennedy repeatedly suggested the Supreme Court should never have accepted the Prop. 8 case in the first place. "I just wonder," Kennedy said at one point, "if the case was properly granted." Later he raised the issue yet again, telling the lawyer who was arguing in defense of Prop. 8, "you might address why you think we should take and decide this case."
If Kennedy can convince four other justices that the Court was in fact wrong to take the case, the Supreme Court might engage in a maneuver that lawyers refer to as a "DIG." That is, the Court would dismiss the Prop. 8 case as "improvidently granted." This unusual approach would leave the 9th Circuit's ruling against Prop. 8 in effect, thereby leaving gay marriage legal in California while the Court remained silent on the issue for the other 49 states.
Finally, as Tom Goldstein observes at SCOTUSblog, the Court could even rope in its forthcoming decision on the Defense of Marriage Act in order to avoid ruling on Prop. 8. As Goldstein writes:
the Court is going to address laws discriminating against same-sex couples in the pending Windsor challenge to DOMA. That could be a basis for declining to decide Hollingsworth [Prop. 8]. Perhaps more likely, any member of the Court could vote to vacate and remand the judgment in Hollingsworth for further consideration in light of Windsor. In that scenario, five members of the Court could agree to vacate the Ninth Circuit's decision on alternative grounds (some concluding that the petitioners lacked standing and others concluding that the court of appeals should rethink its decision in light of whatever the Court holds in Windsor).
Whatever the Supreme Court ultimately decides to do in the Prop. 8 case, Tuesday's oral arguments suggest that a sweeping endorsement of gay marriage in all 50 states is not likely to be included on the menu of options.