Federal Prop 8 Trial | Gay Marriage | News | Proposition 8 | Supreme Court

SCOTUSblog's Initial Analysis: Court Won't Uphold or Strike Down Prop. 8 and It Will Remain invalid

SCOTUSblog's Tom Goldstein writes that the Justices seriously doubt that the petitioners have "standing" (Ari talked about that in his preview HERE):

KennedyThese likely include not only more liberal members but also the Chief Justice.  If standing is lacking, the Court would vacate the Ninth Circuit’s decision.

Goldstein says the Court seemed divided on the constitutionality of Prop 8 along ideological lines with Kennedy as the swinger and it is unclear how broadly the left side of the Court will rule.

Kennedy (pictured), as the swing vote, was cautious:

He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new.  He also noted the doubts about the petitioners’ standing.  So his suggestion was that the case should be dismissed.

Goldstein concludes:

If those features of the oral argument hold up – and I think they will – then the Court’s ruling will take one of two forms.  First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing.  That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8.  Another case with different petitioners (perhaps a government official who did not want to administer a same-sex marriage) could come to the Supreme Court within two to three years, if the Justices were willing to hear it.

Second, the Court may dismiss the case because of an inability to reach a majority.   Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him.  Others on the left may agree.  That ruling would leave in place the Ninth Circuit’s decision.

We'll have analysis from our legal editor Ari Ezra Waldman as soon as possible after the transcripts are released within the next hour or so. Please stay tuned here and make sure not to miss a Towleroad headline by following @TLRD on Twitter.

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  1. I'm confused. Is this good news or bad?

    Posted by: FernLaPlante | Mar 26, 2013 12:39:25 PM

  2. Supreme cowardice. And when will there be enough "social science" evidence. Goddamn the cowards.

    Posted by: Sweet Brown | Mar 26, 2013 12:40:17 PM

  3. So bad right?

    Posted by: Cyberman | Mar 26, 2013 12:42:38 PM

  4. SSM has been available in Canada for 8 years now, with no ill effect.

    Posted by: Jeff | Mar 26, 2013 12:45:49 PM

  5. It depends on where you live if its good or bad. If you live in state where its been "banned" then nothing is changed. You still have no rights and will wait. Live in California and Prop 8 is null and void. If you live in states with civil unions you might get a slight benefit or the status quo.

    For me this is the least attractive option since it really only applies to California.

    Posted by: Homo Genius | Mar 26, 2013 12:52:52 PM

  6. Who the hell is Goldstein and why is he acting like he's brand new to this planet? We all know from last year's healthcare decision that the questioning in court is absolutely meaningless in trying to determine the decisions the court will render. We also all know that votes and decisions can and do change between the hearing and when the decisions are released months down the road.

    This is a garbage opinion piece and it shouldn't be posted. This isn't American Idol, the results don't come in near instantly.

    Posted by: David | Mar 26, 2013 12:58:30 PM

  7. Both options essentially mean that Prop 8 is invalidated, and that marriage equality come to California. Not the sweeping ruling that some hoped for, but to be honest, that was always a long shot. Either outcome is better than upholding Prop 8.

    In a nutshell, what the analysis is saying is that we are likely to win, but only narrowly (ie only in California).

    Posted by: Lars | Mar 26, 2013 12:58:56 PM

  8. Has section 2 of DOMA (the part that says no state has to recognize another state's same sex marriage) been challenged? It seems to me that's a clear violation of the full faith & credit clause of the Constitution.

    Posted by: Hank | Mar 26, 2013 12:59:17 PM

  9. And yeah, I mostly agree with David. People make WAY too much of the questions asked at oral arguments. Sometimes they tip the questioner's hand. But the truth is that very, very few cases are won or lost this way. The written briefs are where the real work is done.

    Posted by: Lars | Mar 26, 2013 1:01:01 PM

  10. Avoiding the issue is not necessarily "cowardice." When both a constitutional and a non-constitutional issue are presented in the same case, the Court is obligated to see if it can resolve the issue on a non-constitutional basis where possible. In keeping with that, my bet is that they'll decide it on the standing issue. Regardless, reading tea leaves from oral argument is frequently wrong. It's too early to start yelling.

    Posted by: Liam | Mar 26, 2013 1:05:11 PM

  11. I have always doubted that the court would rule on Prop. 8 in such a way as to invalidate ALL gay marriage bans. There seemed to be too many lesser issues that they could focus on to satisfy the case without having to get into making that profound a ruling. But Prop 8 falling on even a minor point like standing would still be a victory.

    Posted by: e.c. | Mar 26, 2013 1:11:22 PM

  12. remember last year:

    "The next half hour or so will have a lot of SC prediction. But remember healthcare last year, which looked dead after SC hearing."
    -Ted Johnson

    So best not to speculate in any way.

    Posted by: tc in bk | Mar 26, 2013 1:13:42 PM

  13. Oh, if they deny standing it's an unholy mess.

    The ninth used the standard procedure of requesting a ruling on standing from the CA SC. Is SCOTUS going to invalidate that procedure? That would throw several death penalty cases in doubt which the court is scheduled to hear in short order.

    If the Fed District court ruling is upheld, but the ninth's ruling dismissed then the argument under precedent would be gay rights under strict scrutiny, much stronger than the ninth's compromise ruling. However, how would it apply to other cases? In other words, cases in states like TX could apply the CA ruling or not, and we'd need to go back to the SC in five years to get a consistent ruling. There are also rulings from AZ and ND that are wholly inconsistent with the CA case.

    Posted by: anon | Mar 26, 2013 1:36:08 PM

  14. what's the gap between when they reach a decision and it's release?

    Posted by: t | Mar 26, 2013 1:44:53 PM

  15. Anon - how would invalidating standing in this case confuse death penalty cases? The parties in such cases tend to be uncontroversial, and the particularized harm to the appellant fairly evident.

    I don't think federal courts need to routinely ask state Supreme Courts for information on the standing of parties in death penalty cases. Rather, I think that procedure was particularly invoked by the 9th Circuit here in light of SCOTUS chastising the Circuit for not consulting the AZ SC in Arizonans for Official English.

    Posted by: JamesInCA | Mar 26, 2013 1:46:12 PM

  16. @t - most likely June.

    Posted by: JamesInCA | Mar 26, 2013 1:52:19 PM

  17. the standing issue appears to not be as broad as it seems, they are only targeting the standing of the petitioners who are trying to uphold a law they don't have right to uphold, the government of CA has already clearly stated their position on the matter...you can't really fight for a leagal ruling you are not affected by. It'd be like taking insurance out on someone elses home and trying to collect when it burns down, you didn't lose anything, so you don't have standing to benefit for someone else's lose....the 9th circuit really should have answered this and have it be done with...prop 8 supporters didn't gain or lose anything when the law was enacted and after it was struck down besides their collective bigotry, the state/country cannot endorse the marginalization of a minority(we hope)

    Posted by: epic | Mar 26, 2013 2:00:27 PM

  18. Speaking of homosexuality, Rev. James Meeks should be more concerned with the crime in Chicago oppose to homosexuality and marriage equality: http://liveitloveitdoit.com/site/2013/03/chicagos-rev-meeks-leads-a-campaign-against-homosexuality/

    Posted by: LiveItLoveItDoIt.com | Mar 26, 2013 2:22:42 PM

  19. So basically after all this time, money and worry, we could most likely end up with what we started with: same sex marriage being legal in CA.

    Posted by: BearlyBob | Mar 26, 2013 3:06:42 PM

  20. If the court rules that Proponents lack standing to appeal, it will be because granting them standing to appeal is absurd, not because they want to avoid a decision on same-sex marriage itself.

    The media are going to spin it into a hurricane, but we should be clear what such a result actually means, and ensure it gets reported correctly (including in comments).

    Posted by: Randy | Mar 26, 2013 5:58:38 PM

  21. @ Hank; No section 2 of DOMA hasn't been challenged, and would not be overturned because the Full Faith and Credit clause gives Congress the authority to "prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." Meaning Congress gets to define what 'Marriages' must receive full faith and credit, and which can be ignored. DOMA Sect 2 does just that and allows states to ignore same sex marriages.

    Posted by: DavyJones | Mar 26, 2013 9:55:43 PM

  22. Whatever way court rules, it will hand the GOP the means of its own destruction. State by state fights in the courts and legislatures would back the GOP into an untenable corner between voters and their theocratic base. I see SCOTUS or other circuit courts settling on heightened scrutiny for sexual orientation so BLAG et al will fight the issue in court and lose. That will be good for America.

    Posted by: Marco Luxe | Mar 26, 2013 11:24:17 PM

  23. It seems we are caught between two Constitutional sections: Article III, which prohibits suits in Federal Court by parties not at interest, and Amendment XIV, which requires states to give equal protection of the laws. While amendments by their nature take precedence, it's unlikely that the framers of the 14th Amendment contemplated changing the right of access to Federal Courts (needed to satisfy Originalists) or that the language of those sections has inadvertently created the right that Mr. Hollingsworth is asserting.

    Considering the workload of the Federal Courts and the difficulty in getting Congress to fill vacancies on the Federal bench, the Supreme Court has a palpable interest in a narrow definition of standing.

    Reverting to Judge Walker's decision means that it can be cited in future cases, though it is not binding precedent. The door is thus open to bring suit against another state in the 9th District having a similar bar to marriage in its Constitution. If that fails, there is a clear path of appeal to the Ninth Circuit.

    In the meantime, California is still a very big domino. The H8ers like to emphasize the number of states that have voted against us. We will be in a position to emphasize the number of US citizens who are entitled to marry without restriction of gender.

    Posted by: Rich | Mar 27, 2013 5:08:16 AM

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