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Constitution Check: Is the court going to take a pass on same-sex marriage?

March 27, 2013 by Lyle Denniston


350px-Supreme_Court_US_2010Lyle Denniston explains the key role Justice Anthony Kennedy played in Tuesday’s Proposition 8 arguments, and why a stalemate could be in store.

The statements at issue:

“The problem with this case is that you’re really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters.”


– Supreme Court Justice Anthony M. Kennedy, in a comment during Tuesday’s hearing in the Court on the constitutionality of California’s Proposition 8 ban on same-sex marriage. He was addressing lawyer Theodore B. Olson, representing the challengers to that law.


“You might address why you think we should take and decide this case.”


– Justice Kennedy, in a comment Tuesday to lawyer Charles J. Cooper, representing the sponsors of Proposition 8, the measure approved by California voters in 2008.

We checked the Constitution, and…

In the two and a half years since a federal judge in San Francisco ruled that California voters had violated the U.S. Constitution in passing Proposition 8 and banning same-sex marriage in that state, there has been a slow but steady buildup of anticipation for the day that the controversy would reach the Supreme Court. Some of that was misplaced, because the Constitution simply does not require the justices to resolve every dispute, however big it is, that comes to them.


Proposition 8 finally got a full airing in the court on Tuesday, but in what may seem like a national letdown, the justices may have been sending a message that they won’t decide this case after all. They surely will dispose of it; the case won’t just languish on the docket. But the outcome that seemed a real possibility after an 80-minute hearing is that the court would walk away from the case without settling anything—at this point, at least—about the claims to same-sex marriage rights.


This is not the stuff of headlines about the way the Supreme Court does its work. The news media, and maybe the public in general, are geared to expect important constitutional rulings coming out of the court, definitely resolving some major controversy—for example, last year’s decision upholding the new federal health care law.


So it may be hard to grasp why the court would conclude, after enormous effort on Proposition 8 by lawyers and by the justices and their clerks, not to decide such an important case. (A cautionary note here: The initial impression might prove flawed, and the justices just might find a way to reach a decision, later on. But, based on Tuesday’s hearing, that would definitely be a surprise.)


The comments quoted above by Justice Kennedy provide, with some explanation, the possible reasons that would lead the court away from a decision this time. And it became very important to focus on how Kennedy reacted, because the rest of the court appeared to be quite deeply divided on the ultimate question of same-sex marriage, so he may well be holding the deciding vote.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

Kennedy’s remark about “uncharted waters” was typical of several comments he made suggesting that America does not have much experience yet with same-sex marriage, and so the social science data about its impact on families, on children, and on the institution of marriage itself, might be regarded as debatable. Does the court want to order marriage open to same-sex couples without knowing more about it?


That was what Kennedy indicated was his concern. But beneath that, it was clear, was a hesitancy to establish a major new constitutional breakthrough right now, when the country remains deeply divided on the underlying dispute, even if popular attitudes may be changing in favor of equality for gay and lesbian couples.


And Kennedy’s question about whether the court should even have agreed to hear this case suggested that he was thinking of a way out in case the justices could not come together on a definitive ruling on same-sex marriage. Even after the court has agreed to review a case, it can change its mind and conclude that doing so was a mistake.


The court has almost total discretion on how it draws up a list of cases that it is willing to decide. While there are a few areas of the law where Congress has indicated that it wants the court to decide cases in those areas, the justices still have devised ways to avoid doing so if they conclude that they don’t want to spend their time on a given case.


When Kennedy asked an attorney to justify the court’s review of Proposition 8, he was conveying the message that this might have been one of those occasions when the court had reached before it was ready. If enough of his colleagues were ultimately to share the view that taking on same-sex marriage at this point was premature, the California case could end in what would amount to a judicial whisper.


As the Tuesday hearing was nearing its end, Justice Sonia Sotomayor indicated that Kennedy’s musing about not reaching a decision on the dispute at this point might well be catching on with other members of the court. In a rhetorical question, she asked attorney Cooper: “If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?”


This morning, the court was taking another look at same-sex marriage, in a case involving the constitutionality of the federal Defense of Marriage Act. That case, though, does not involve a fundamental question about an equal right to marry, since the couples who challenged that law are already legally married. Rather, it involves whether Congress had the constitutional authority to deny married same-sex couples the same marital benefits that are given to opposite-sex couples under about 1,100 federal programs or services. (Constitution Daily will report tomorrow on how the justices reacted to that case.)


Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.


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