Supreme Court

What Happens If SCOTUS "Punts" on Prop. 8?


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." 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.

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  1. a sweeping endorsement of gay marriage in all 50 states is not likely to be included on the menu of options

    Thank God. If this was all settled what would reason have to write about? I suppose they could focus on being the trade journal of the food truck industry.

    1. Reason: All Gay, All The Time.

    2. Yawn. Only the dreaded COSMOTARIANZ would write about something currently being discussed by the Supreme Court.

  2. 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.

    Probably a good thing. In 20 years gay marriage will most likely be legal in every state. If the court forces it on recalcitrant states now, it won’t help the cause at all.

    1. And it will further set the precedent that the Constitution means whatever the hell the judges decide it means.

      1. sigh…really?…you really can’t think of any reasonable Equal Protection argument?

        1. Yes really. You are going to tell me that even though sodomy was illegal in nearly every state when the 14th Amendment was drafted and gay marriage wasn’t even thought of until the 1980s, that deciding that equal protection now means a right to gay marriage? And that is not just making shit up.

          As Scalia asked yesterday, on just what date did gay marriage become a “constitutional right”?

          1. So equal protection under the law only applies to things that were around or accepted when the law was written? I guess all modern weapons need to go then. This is the equal protection equivalent of “the 2nd Amendment only protects muskets”.

            1. No. It doesn’t apply to things that were specifically illegal at the time of the passing of the Amendment. If it does apply to things that were illegal at that time, again, when did it become a constitutional right?

            2. equal protection would go away as a rallying point if the tax code was neutral toward marriage. Get govt out of the social engineering business and a lot of things resolve themselves.

              1. Wareagle,

                Currently the tax code discriminates against marriage, at least in the case of two income couples, which is most of the world these days. So the “but straights get tax benefits” is really not an argument.

                1. As someone who just got married and will take a penalty I hear you but it really depends on what your two incomes are.

                  The main tax benefit to marriage is the estates tax.

                  Almost all these issues are separate though. The tax code shouldn’t discriminate against anybody. Flat tax no deductions no estate tax.

                2. the tax code should be personal-decision neutral, but it is the single greatest source of power in DC. All those credits, deductions and other loopholes are nothing more than vote-buying tactics. The code should neither reward nor punish marriage,car buying choices, or other personal decisions.

                3. John, that is true when it comes to tax rates, but you neglect things like estate tax and employer health insurance. Married people get big tax benefits from those things.

            3. And then there’s always the Suitcase Nuke argument, which allows that “arms” is not absolute because…well…because it scares people.

              But it’s clear that the line drawing which the court does can shift over time as society evolves, either technologically or culturally. There will always be fluidity in the Constitution. It’s the boundaries of the fluidity that’s debatable.

              And this is entirely different from a “Living Constitution”, which I feel means an exercise is subverting “plain meaning” altogether.

              1. But it’s clear that the line drawing which the court does can shift over time as society evolves,

                Why do you think “society has evolved”? Gay marriage has lost nearly every election it has had and it lost the one in California that is at issue here. How has society evolved beyond a few elites deciding that this will be a right and the rest of the country can go fuck themselves.

                “Society has evolved” is just a fancy way of saying “fuck you that is why”.

                1. How is it not obvious that society has evolved enormously on this issue? It may not be a majority position yet, but things are certainly moving that way. There has been a huge shift to accepting gays as normal (or at least non-pathological) over the last 20 years or so. Anything that becomes gradually more acceptable loses elections until it doesn’t. Until last year, you could have said the same about pot legalization, but now it has won some.

              2. On last thing MP. What makes you think that society can only “evolve” for the good. What happens when society evolves and decides free speech is really a bad thing or doesn’t mean what it did in 2000 or 1900 or whenever? Does the 1st Amendment die then or at least become something entirely different and less protective than it has always been? If not, why not? Society evolved didn’t it?

                1. What makes you think that society can only “evolve” for the good.

                  I don’t. And I’m not implying that Gay Marriage is a “good”.

                  Take your example. What is “Press”. In an Original Meaning sense, it likely means The Action of Printing and not a credentialed sub-class. But it’s still “Printing”. It’s not writing blogs or broadcasting video.

                  And I don’t think there’s any argument that one can make that redefines “Free Speech” as a “bad”. That’s not what I’m saying at all. It’s simply about boundaries that derive from Original Meaning. You can’t simply redefine Original Meaning to wipe it away, as you imply. But you can state that the Original Meaning has a general Venn Diagram attribute that’s variable over time given technological and social changes.

                  1. Well, you like gay marriage. A lot of people don’t. What makes you think you get to declare it a Constitutional right other than you like it?

                    1. Hey John I don’t *like* gay marriage. My gay married friends are boring as hell. I do think the constitution requires marriage equality, however.

                  2. “And I don’t think there’s any argument that one can make that redefines “Free Speech” as a “bad”. ”

                    You can easily find such arguments, even from journalists. You’re just not looking hard enough, or you refuse to accept that there will be quite a constituency for censorship if the First Amendment is no longer an obstacle.

                    Look at the support for censorship throughout history: Sedition Act, anti-abolitionist measures, arrest of antiwar editors, Espionage Act, Smith Act, fire-hoses for demonstrators, “campaign finance reform,” and I’ve just scratched the surface.

                    Any halfway competent lawyer can draw up an argument “proving” that society has “evolved” beyond free expression.

                    1. You can easily find such arguments, even from journalists.

                      No, you can’t. I wasn’t talking about an argument that “Free Speech” is a “bad”. I was trying to saying that one couldn’t plausibly define “Free Speech” in a way that made it an oppressive, rather than a freeing, principle.

                    2. You never heard a journalist defend “campaign finance reform?”

                      “one couldn’t plausibly define “Free Speech” in a way that made it an oppressive, rather than a freeing, principle.”

                      Money in politics! KochPorations buying elections! Does that work?

          2. As Scalia asked yesterday, on just what date did gay marriage become a “constitutional right”?
            Scalia could have asked the same question about hetero marriage and the answer would be no different.

            1. Bullshit. The answer would be 1865. You know the date when the 14th Amendment was passed and hetro marriage was recognized by every single state.

              1. the same 14th Amendment with the Equal Protection clause?

              2. Then how about hetero inter-racial marriage? That was illegal in many states when the 14th was passed.

                1. Illegal yes, but still recognized as a real marriage. In order to punish an illegally-married interracial couple, the State had to prove that the couple really was married.

                  The claim on the anti-gay-marriage side, OTOH, is that a “gay marriage” isn’t an actual marriage, and that calling it one is a dangerous legal fiction.

                  Also, the laws against interracial marriage are relatively new, first having been passed around 1700. So interracial couples had a previously-recognized right to get married that dated back before the passage of either the anti-miscegenation laws or the 14th amendment.

          3. When the 14th Amendment was written there also wasn’t extensive federal government involvement in marriage. Nobody has a right to marriage but now that marriage come with many privileges (and yes I know some can be contracted elsewhere but plenty cannot) then there should be equal access.

            I personally think the case is iffy except for the federal government not recognizing gay marriages in states where it is legal. If this is part of the states police power then the federal government shouldn’t be taking a position either way.

            1. When the 14th Amendment was written there also wasn’t extensive federal government involvement in marriage.

              Bullshit. The feds paid benefits to veterans and seaman and such. And they defined “spouse” just like they do now.

              And you are not making an equal protection argument. You making a federalism one. Should the states define what is “married”? Maybe. That is a more convincing argument than the equal protection one.

              1. Please, I used the word “extensive.” You know very well that the involvement is far greater today.

                In any case I mostly agree with you. The only rock solid case I think is that the Federal government doesn’t recognize legal marriages. Either the states are the ones who get to define it or they aren’t. You can’t have it both ways.

          4. Gay marriage was thought of before the 80s. No one thought it had a chance of legal recognition before then, but it was already happening.

          5. “You are going to tell me that even though sodomy was illegal in nearly every state…”
            Interracial marriage was broadly illegal too.

            “As Scalia asked yesterday, on just what date did gay marriage become a “constitutional right”?”
            On July 28, 1868. The original intent of the equal protection clause was… to assure equality before the law. They just don’t understood the logical consequence of their own decision at the time.

      2. John, the constitution means whatever the hell the court decides it means. Which higher authority do you suppose they’re meant to defer to?

        1. Yes, Tony, the court can decide that the Constitution means whatever it likes without any reference to what the drafters meant or the plane meaning of the words.

          Unlike Shreek, who is just an ignorant sock puppet, you are an actual person. And you are actually dumb enough to believe that granting the court such power would only ever work in your favor. Good luck with that.

          1. Why on earth would I believe that? Especially with this court? Judicial review is long-settled doctrine. There’s really nobody else around to decide how the constitution applies in a novel case. They do have to treat the constitution as the ultimate authority, but it can’t exactly anticipate every possible controversy.

            1. And they should interpret the constitution as it was drafted not as a document to be tortured to give them whatever they want.

              1. Where’s the fun in that, John? They should interpret the constitution to mean whatever they want it to mean because they have the power and because might makes right. Right Tony?

              2. By “as it was drafted” you of course mean “torture it to agree with whatever I want, please.” If they were easy questions they wouldn’t be before the supreme court.

                1. Yeah. Sure. Language like “shall not be infringed” is soooo unclear.

                  1. That’s not the unclear part.

                    1. It’s not. “Never infringe this” is what it means, that’s pretty “nuclear” by Tony-standards.

                    2. Should be a question-mark at the end of the first sentence.

    2. ” In 20 years gay marriage will most likely be legal in every state.”

      So what are the odds that Alabama legalizes SSM before they legalize homebrewing?

      1. Homebrewing is illegal in Alabama? Not sure I’ve ever said this, but I’m glad I am in MA then.

  3. 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.

    This is why there are no female liber… oh wait. Punt.

  4. He said “oral.” Hehehehehehe.


  5. First, nobody has any idea what they’re talking about when they’re trying to interpret the oral argument into a final ruling.

    Second, anything short of nationwide marriage equality will be a stain on the court’s long-term record.

    Remember when America used to lead the world in progress? Nah let’s just continue coddling our vast ranks of idiots and bigots and let The Netherlands take the reins for a while.

    1. Pepperidge Farm remembers.

      1. You say that as I munch on Pepperidge Farms smoked gouda on crackers. Yum.

    2. Your second point is important, and it’s probably why the Court will punt the case. Roberts is smart enough to know that upholding Prop 8 will destroy his Court’s legacy, but also sees that there is limited support for the equal protection argument.

    3. State sanctioned marriage is not a right by virtue of it being sanctioned by the state. If you need the state’s permission for it than its a privilege, not a right.

      1. It’s a basic civil right according to our court, entailing privacy, association, and other basic rights. Sure it comes with certain specific legal benefits, but if it didn’t and was just a word people called themselves, then it wouldn’t really be anything.

        1. You said upthread that the Court decides what is or is not constitutional. They do not, however, decide what is a right and what is not. Rights are something we are endowed with from birth, i.e., the right to voluntarily associate with whomever we want (like in a marriage for example). Privileges are granted by the government, i.e., the privilege to not testify against one’s spouse, or to file taxes jointly, or to share healthcare benefits.

          1. So where are these rights we get at birth written down? Or are they just whatever you claim they are? Or are they in the constitution–a thing written by men and parsed by courts?

            In point of fact the court does decide and has decided what rights exist and don’t exist. It’s in the process of doing that right now.

            1. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.-

        2. If same sex couples can find a religious institution to marry them then they can get married. No one could throw them in jail for such, so their rights to privacy and association are not violated.

  6. I don’t see how SCOTUS can do anything but punt on the Prop 8 question. Anything else renders the referendum process meaningless and every initiative in any state will result in the losers trying to win in court what they could not win at the ballot box.

    1. Bullshit. Would the court invalidate a referendum calling for the return of racial segregation? Of course they would. Would that “render the referendum process meaningless”? Of course it wouldn’t.

      1. Would a segregation referendum pass? No. So your analogy is stupid.

        1. It’s the same issue.

          1. No. It’s not. Though I won’t bother to explain it to you since it has been explained already by many times by many people. You’re too blinded by emotion to listen.

            1. You’re the one saying stupid shit. Whether such a referendum would pass or not is beside the point.

              If a racial segregation referendum passed, would invalidating it “render the referendum process meaningless”?

              No, of course not. That specific laws can be challenged under specific legal arguments doesn’t invalidate all voter decisions.

      2. That is just question begging on your part. What makes you think this is like racial segrgation?

        The problem here is a standing one. The state of California refused to defend its own referendum. If you allow them to do that, you allow the state to have effective veto power of any referendum because all they have to do is refuse to defend the ones they don’t like ensuring their doom.

        That is a different issue than the equal protection one.

        1. What makes you think this is like racial segrgation?

          Well, the only possible reason to oppose redefining marriage is hatred. That’s it. There is no other reason. None whatsoever. Just hatred. Raw bigotry. No other reason.

          Tut! Don’t you go and give any other reasons! All the other excuses are just that: excuses. Excuses to cover up hatred, because hatred is the only reason one could oppose redefining marriage.

          1. It’s just that nobody has articulated a convincing argument to oppose it. As Bill O’Reilly himself said, opponents can’t seem to do anything but “thump the Bible.”

            1. The opposition doesn’t need a convincing argument. The burden of proof is on those who want to change the status quo. You’re shifting the burden of proof, which is a fallacy. Then again, since you eat fallacies for breakfast, you should see no problem in it.

              1. The status quo has already changed. Same sex couples get married. It really happens.

              2. I didn’t say the burden was on them, but the proponents of same-sex marriage do have a good constitutional argument, and opponents don’t have a good rebuttal. Proponents have met the burden.

                1. The 14th and 10th make marriage up to the states. I can see striking down DOMA, but not bans at the state level.

                  1. Because of the 14th states can’t deny equal protection.

                    1. There are methods of providing equal treatment that do not require redefining a word.
                      I just wish you people would be honest and admit that the goal is not equal protection, rather the goal is redefining a word.
                      But that would be honest, and you would rather obfuscate.

                    2. The goal is equal rights and that requires “redefining” the word, as you put it. Ted Olson gave an eloquent explanation for why the label is important.

                      What you don’t realize is that you are contradicting yourself. If the label is unimportant, then who cares if gays use it? If it is important, then how do you justify denying access to it for gays?

                    3. I’m not making an argument. I’m just asking for your side to be honest.

                    4. I think we are. The goal is redefining the word, i.e., getting FULL legal rights and recognition. What’s your problem with that?

                    5. There it is. “Recognition.” It’s all about feeeeeeelings.

                      I don’t give a shit about your feelings.

                    6. And I don’t give a shit about yours, especially when the only reason you’re offering to deny my equal legal rights is your “feelings” over the meaning of a word.

              3. That’s a bullshit argument. The burden of proof should lay on those who wish to curtail the freedoms of others.

                1. Curtailing the freedom to violate freedom of association?

                  1. That’s not the same thing. The problem is the anti-discrimination laws, not gay marriage. It would be like arguing against the Civil Rights Movement in general because of anti-discrimination laws and affirmative action that were a part of the broader movement.

                    Why is it that whenever this subject comes up, you pretend that the vast majority of gay marriage opponents don’t support government force to define the word in the first place, or government recognition and special protection of hetero marriage? And it’s just the gays that want that?

                    1. It’s like open borders and welfare. I support open borders, but not while there is a welfare state. Get rid of these anti-discrimination laws and I might be more sympathetic to SSM.

                    2. Should we be against interracial marriage because discrimination on the basis of race is outlawed? No, that would be retarded. But you take the equivalent stance on gay marriage.

                      You make a similar argument about borders and welfare, whereby it’s ok to infringe on someone’s rights because you’re afraid they’ll use our government to violate yours.

                      Might as well be against free speech by foreigners too(look out Piers Morgan!), they might write in support of more welfare.

      3. any more straw men you want to toss out? States hold public referenda all the time; someone wins and someone loses each time. No referendum seeks to overturn existing law. Moron.

        1. Umm…Prop 8 existed to overturn existing law…

          1. But he was so excited to call me names!

        2. I can think of two referendums off the top of my head in my state that were in response to laws that people wanted overturned.

          1. One of them being the case which is actually being argued right right now!

            1. Uh, no? I don’t live in California.

              1. Didn’t read the “my state” part. Sorry.

          2. Yeah. In my state I think these are the only kinds of referendums we have.

    2. I actually think that punting on the case would be far more damaging to the referendum process. It would set a precedent that only attorneys general have standing to defend popularly-passed laws. Thus, referenda which are act against the state’s interest can be overridden by the attorney general’s refusal to defend the law.

      I don’t know whether this is a good outcome or bad. Most popular referenda are pretty stupid. And I see it as a tyranny of the majority thing…

      1. Bad, some referendum’s will be stupid, some not, their fitness is not for you to decide.

        1. From a Constitutionalist standpoint, hampering the referendum process would not be a terrible thing. It would really be just another check in this republican form of government, designed to prevent tyranny of the majority.

    3. “Majority rules, fuck you!” isn’t something you often see expressed here.

      1. I’m very surprised by this as well…isn’t the phrase “tyranny of the majority” thrown around quite a bit?

      2. There’s a few commenters who become very “team-play” oriented when it comes to this issue.

      3. Yeah, it’s disappointing. I’m not sure why you’re disappointed, though, since that’s your philosophy.

        1. It’s majority rules until he disagrees. Then it’s up to the courts.

          1. Majority rules is the fundamental principle of democracy. Minority civil rights are protected in advanced democracies. There’s no contradiction. You don’t have to be for all or nothing.

            1. By definition majority rules the minority gets screwed.

              You’re like a screaming mime.

              1. So you think the minority should always rule? Or what? You should be god-king?

                1. Take that, straw man! And that too!

                  1. So you’re not against majority rule? What exactly is your argument?

                    1. What exactly is your argument?

                      That you love fallacies and contradictions.

                    2. I think you are just incapable of seeing gray areas or complexities.

                    3. The art of solving complex problems is breaking them down into simple component parts.

                      I am a problem solver. All you do is obfuscate.

                    4. What’s unclear about supporting democracy plus minority rights? It’s, like, the system we live in.

                    5. You support majority rule except when you don’t. That’s pretty clear.

                    6. Yes. And your views differ how?

                    7. I have morals and principles. You do not.

                2. “So you think the minority should always rule? Or what? You should be god-king?”

                  Nobody should rule ! That’s the meaning of the”rule of law”.

  7. What Happens If SCOTUS “Punts” on Prop. 8?

    Tony remains single. And that is my problem….how?

    1. An injustice to one is an injustice to all, and all that crap.

      I’ll remain single either way. Marriage is stupid.

      1. So, your likelyhood to become stupid is an injustice then?

  8. In 20 years, same-sex marriage may be legal, but I bet it will be non-existent. I’m guessing a heteronormative institution like marriage is not a proper paradigm for homosexual relationships, and that the fad will pass.

    1. I don’t know. Homos seem to generally pair off just like straight people. I guess we’ll find out.

      1. Q: What do two gay men bring to their second date?

        A: What second date?

        1. And the lesbians sarc?

          1. Q: What do two lesbians bring to their first date?

            A: Toothbrushes.

            Q: What do two lesbians bring to their second date?

            A: A U-Haul.

            1. My roommate was explaining the term “U-Haul Lesbian” to her straight, male coworkers when a lesbian coworker walked in and started complaining that the term was bullshit. My roommate paused, smiled and asked “How long did you date your GF before you two moved in together.” Her coworker looked sheepish and replied “About three weeks”

              1. Humor requires a certain amount of uncomfortable truth. Which is why hardcore liberals tend to lack a sense of humor: They don’t like uncomfortable truths. Instead they laugh at people falling off the roof.

      2. No doubt; but I’m guessing the pairing won’t rely on an ancient religious ceremony to validate the legitimacy of the relationship.

        1. There’s more to the legitimacy of the reltionship that might be an issue to the court.
          “Same-sex marriage is brand new, and child rearing by same-sex couples remains rare. Even if both phenomena were far more common, large amounts of data collected over decades would be required before any responsible researcher could make meaningful scientific estimates of the long-term effects of redefining marriage. The justices are unlikely to take so momentous a step unless they are persuaded that granting this new right to same-sex couples will not harm children or ultimately undermine the health of our society.”

  9. It occurred to me that I should issue a point of clarification: If I ever make a statement to the effect “I went to WBC”, I’m talking about my alma mater, Williams Baptist College, NOT the Westboro Baptist Church.

    1. Well either way, “went” signifying past tense is a good thing.

      1. You know of Williams Baptist College?

  10. Yet another news story about how SSM is totally not connected to the regulation of private businesses:

    “The fate of gay marriage legislation in Rhode Island could hinge on the exemptions it affords religious groups that oppose it, the state Senate president said Friday, a day after the House overwhelmingly passed the bill….

    “In legislative testimony, a lobbyist for the Roman Catholic Church raised concerns that Catholic schools and charitable organizations could be forced to change employee benefit policies if compelled to recognize the same-sex spouses of employees.

    “The bill passed by the House states that religious institutions may set their own rules for who is eligible to marry within their faith and specifies that no religious leader can be forced to officiate at any marriage ceremony.”…..e/1865161/

    No exemption for private, for-profit businesses – and even the exemption they conceded to religious groups is so far quite limited.

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