By now you've heard from the various news sources that, in this week’s Supreme Court arguments on California's Proposition 8 and the Defense of Marriage Act, a majority of justices expressed skepticism over both. So it's imaginable—even probable, if you believe the news—that we will find ourselves at the end of June with DOMA in the junk pile and marriage equality back on the books in California.
But don't put the pink champagne on ice just yet. In both days of argument, the justices spent an extraordinary amount of time dealing with knotty procedural issues. Both cases are complicated by the fact that the executive officers who usually defend laws in court (the governor and state attorney general for Prop. 8, the president and U.S. attorney general for DOMA) have no stomach for such defense, since they think the laws they’d be defending are unconstitutional. So as the nation anticipated a debate over the importance and meaning of marriage, the Court had a debate over procedure.
Wednesday, I was in the courtroom as the justices engaged three separate lawyers—one from the government, one from the congressional leadership, and one appointed by the Court—on arcane issues of whether the president was the only party who could challenge the decision in the lower court striking down DOMA. For almost an hour, the Court wrestled with the dilemma that this caused for the Court. Could the president steal from the Court its opportunity to decide the case because he did not want to challenge it?
Once the argument turned to the merits of whether DOMA was unconstitutional, there were a few minutes of active questioning of the congressional leadership's attorney, arguing in favor of DOMA. But the energy couldn't be sustained. As the Court's second hour of argument wore on, even Justice Antonin Scalia, usually one of the most engaged questioners, leaned back in his chair. Then Stephen Breyer. Clarence Thomas—never an active questioner anyway—went from leaning forward with interest, to rubbing his face as if to ward off a yawn. By the time the attorney for the original plaintiff, Edith Windsor, stood up to argue that the constitutional principle of equality should protect her same-sex marriage, the air had gone out of the balloon. After Windsor's attorney floundered on a couple of what-should-have-been-obvious questions, the justices seemed to disengage completely. What was left was a sequence of awkward pauses while the attorney looked through her notes to see what she should say in the absence of questions.
To paraphrase T.S. Eliot, the argument ended not with a bang but a whimper.
So the justices left the courtroom after surprisingly little discussion about the merits of the equal-protection arguments against DOMA. Instead, the key swing vote, Anthony Kennedy, seemed fascinated by the notion that DOMA was unconstitutional not because of the fact that it embodied prejudice against gay men and lesbians but because the federal government did not have the power to legislate in an area traditionally left to the states.
If Kennedy goes that direction, there is no way he will command a majority. The four liberals on the ideological left of the Court (Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) may vote to strike down DOMA as unconstitutional discrimination, but without Kennedy there is no majority for that view. Kennedy's vote would be the fifth to strike it down, but on the deeply conservative and troubling grounds of the lack of federal power.
Such an outcome would be a victory, I suppose, but it would come at a high cost. There would be no agreement that discrimination on the basis of sexual orientation is constitutionally problematic, so other discriminatory statutes—for example, those banning adoption by gay couples—would survive. Moreover, a Kennedy opinion offering a rationale that prioritized state rights would mean that the federal government could not, say, adopt a statute protecting same-sex couples. (A hypothetical that Chief Justice John Roberts kept hammering.) Nope, Kennedy would say, that's up to the states. And of course, Kennedy's fixation on states' rights in the DOMA case would imply that he is likely to uphold state laws that limit marriage to between men and women. Like Prop. 8.
So DOMA could be struck down, with the price being a survival of Prop. 8. Or the Court could avoid ruling on the merits of Prop. 8 entirely, if it decides that the procedural issues are sufficiently problematic that it should simply kick the can down the road one way or the other. If that happens, the cases would end like the argument—not with a bang or a champagne cork but with a whimper.
So, don’t expect much. No majority opinion exhorting the importance of marriage equality. Perhaps a bunch of tedious opinions about arcane standing law. Perhaps an opinion lauding the right of state “sovereigns”—they love that word—to make their own decisions on marriage. Maybe Prop. 8 survives, or maybe not. But bans on gay marriage in most states will still be on the books in a year. Or ten.
Earlier this week, at the end of my constitutional law class, I urged my students to remember where they were when these arguments took place, since we may see this generation’s Brown v. Board of Education. But after the three hours of argument over the last two days, I don't think my students will need to save their diaries.
That day will come, but not this year.
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