The Supreme Court shows its on hand on its forthcoming gay marriage ruling

As you no doubt have heard, the Supreme Court heard oral arguments today on the question of gay marriage (audio below and transcript here). At issue is California’s 2008 law banning gay marriage, Proposition 8. A lower court has struck down this law duly enacted by California voters, and now the question is whether or not SCOTUS will uphold the lower court or overturn it.

Oral Arguments at SCOTUS concerning Proposition 8

There are a number of possible outcomes to this case. Probably the least likely outcome is that SCOTUS would overturn the lower court and uphold the will of California’s voters to ban gay marriage. More likely is that SCOTUS would take an action that would in one way or another overturn Proposition 8. If that happens, the question is whether SCOTUS will rule narrowly (which would only legalize gay marriage in California) or broadly (which could overturn all laws across the country that ban gay marriage).

It’s notoriously difficult to predict how the Court will rule, but all the initial reports seems to indicate that at least one thing is clear. The Justices of the Supreme Court have no appetite to rule broadly on the issue in either direction. Pete Williams reports for NBC News that it’s “quite obvious” that SCOTUS is not prepared to issue any sweeping ruling about gay marriage. Williams says that both conservative and liberal justices expressed reluctance about doing anything that would have any effect outside California.

We won’t know for sure what the result is until SCOTUS releases its decision in June, but it looks like the Court may have shown its hand this morning. If these initial reports are accurate, it would mean that gay marriage would become legal in California and that all laws in other states banning gay marriage would remain in place.

If all of this pans out—and that’s a big “if”—that means that the debate over gay marriage will remain a state-by-state issue. So traditional marriage supporters would have their work cut out for them. They’ll have to make their case in every statehouse and courthouse in which they can get a hearing.

The fat lady hasn’t sung yet, and perhaps she won’t be making an appearance at the Supreme Court at all. And that’s a good thing.


  • Dwight McKissic


    Thanks for this update and analysis. In our staff meeting today we devoted considerable time to discussing and praying about this issue. I would love to see the court uphold Proposition 8. The next best scenario is to make a ruling restricted to California regarding this issue. I trust and pray that your perception on what might take place is correct.

  • Steve Potts

    After the oral arguments for Obamacare the consensus was that the individual mandate almost certainly had no chance. Then the decision came down stunning nearly everyone. A lot depends on how the DOMA decision goes (oral arguments tomorrow, I believe). We need to brace ourselves because the court could still do a “Roe v. Wade” style new right to gay marriage decision. I hope predictions otherwise prove true, but the court can be surprising.

  • buddyglass

    For what it’s worth, should s.s.m. remain a state-by-state issue, Nate Silver projects that by 2020 a hypothetical ballot initiative would enjoy >= 60% support in 23 states plus the D.C.

  • Paula Bolyard (@pbolyard)

    There was an interesting exchange today between Justice Scalia and Ted Olson (for the Respondents):

    “JUSTICE SCALIA: “I’m curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?”

    Mr. OLSON: : “It was constitutional when we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control…”

    JUSTICE SCALIA: “I see. When did that happen? When did that happen?”

    MR. OLSON: “There’s no specific date in time. This is an evolutionary cycle.”

    You can see that Olson and his side are arguing here that the meaning of words of the Constitution should “evolve” along with the culture’s values. It’s arbitrary and fluid. When it happens, apparently society will just know and the laws should be changed to accommodate the culture.

    Also, JUSTICE SCALIA: “So your — your position is only if a State allows civil unions does it become unconstitutional to forbid same-sex marriage, right?”

    Obama’s Solicitor General agreed, except he said he would remove the word “only.” In other words, they are asking the Supreme Court, via the Prop 8 decision, to force states with civil union laws to legalize gay marriage.

    For the Petitioners: CHARLES COOPER: “And let’s just step back and just consider for a moment the Solicitor General’s argument. He is basically submitting to the Court that essentially the one compromise that is not available to the States is the one that the State of California has undertaken; that is, to go as far as the people possibly can in honoring and recognizing the families and the relationships of same-sex couples, while still preserving the existence of traditional marriage as an institution. That’s the one thing that’s off the table.”

    This case is not just important for CA, as it could impact states with civil union laws both now and in the future. FWIW, one justice brought up the fact that upholding this law could discourage states from passing civil union laws for fear that they would have gay marriage imposed upon them.

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