Reading tea leaves: Why the Court will uphold Proposition 8

This blog is pleased to have reactions to the oral arguments in Hollingsworth v. Perry and United States v. Windsor from guest contributors with a range of perspectives. This post has reactions from Michigan Solicitor General John J. Bursch. Solicitor General Bursch authored an amicus brief on behalf of Michigan in support of Dennis Hollingsworth et al.

Parsing Supreme Court oral argument transcripts to predict outcomes is a bit like using tea leaves to predict the future; neither method is very reliable.  But at the risk of being left out of the prediction derby entirely, we can consider potential outcomes on a probability spectrum. 

Highly probable:  The Court will reject the government’s “eight-state solution.”

In its briefing and at oral argument, the federal government argued that the Court should invalidate traditional-marriage laws only in those states that already grant the most marriage-like benefits to same-sex couples through laws authorizing civil unions.  It is an understatement to say that the Justices were less than enamored with the government’s argument:

• Justice Ginsburg:  “So a State that has made considerable progress has to go all the way, but . . . if . . . the State has done nothing at all, then . . . it can . . . do as it will?”

• Justice Breyer:  “[S]o a State that does nothing hurts them much more, and yet your brief seems to say it’s more likely to be justified under the Constitution.  I’d like to know with some specificity how that could be.”

• Justice Sotomayor:  “[T]here is an irony in that, which is the States that do more have less rights.”

• Chief Justice Roberts:  “So it’s got to happen right away in those States where same-sex couples have every legal right that married couples do.  But you can wait in States where they have fewer legal rights.”

• Justice Kennedy (addressing Perry’s counsel):  “[The Ninth Circuit] basically said that California, which has been more generous, more open to protecting same-sex couples than almost any State in the Union, just didn’t go far enough, and it’s being penalized for not going far enough.  That’s a very odd rationale on which to sustain this opinion.”

• Justice Alito (same):  “[A]re you seriously arguing that . . . if the case before us now were from a State that doesn’t provide any of those benefits to same-sex couples, this case would come out differently?”

Not a single Justice jumped in to defend the federal government’s position.  It is difficult to imagine that a majority of Justices will coalesce around the eight-state solution.

Highly probable:  There are four Justices ready to uphold traditional-marriage laws and four Justices ready to strike them down.

Going into the Hollingsworth argument, the prediction was that Justice Kennedy would be the swing vote.  And in this respect, the pre-argument prediction appears to be correct.  Justices Breyer, Ginsburg, Kagan, and Sotomayor showed significant skepticism for Proposition 8’s proponents.

• Justice Breyer:  “What precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile couples of different sexes to marry would not? . . .  [C]ouples that aren’t gay but can’t have children get married all the time.”

• Justice Ginsburg:  “[W]e [have] said that somebody who is locked up in prison and who is not going to get out has a right to marry, has a fundamental right to marry, no possibility of procreation.”

• Justice Kagan:  “[S]o you have sort of a reason for not including same-sex couples [in state-sanctioned marriage].  Is there any reason that you have for excluding them?”

• Justice Sotomayor:  “[O]utside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them?”

Conversely, Chief Justice Roberts and Justices Alito and Scalia showed considerable sympathy for the rational-basis theory that Proposition 8’s proponents have advanced.

• Chief Justice Roberts:  “[I]f you tell a child that somebody has to be their friend, I suppose you can force the child to say, this is my friend, but it changes the definition of what it means to be a friend.  And that’s it seems to me what the . . . supporters of Proposition 8 are saying here. . . .  [A]ll you’re interested in is the label and you insist on changing the definition of the label.”

• Justice Alito:  “The one thing that the parties in this case seem to agree on is that marriage is very important.  It’s thought to be a fundamental building block of society and its preservation essential for the preservation of society.  Traditional marriage has been around for thousands of years.  Same-sex marriage is very new. . . .  But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? . . .  “[W]hy should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?”  It can probably be safely assumed that Justice Thomas shares these sympathies.

• Justice Scalia:  “[W]hen did it become unconstitutional to exclude homosexual couples from marriage?”

So what will Justice Kennedy do?

Highly improbable:  The Court will DIG or dismiss based on standing.

All the Justices quizzed counsel about standing.  But counsel for the Proposition 8 proponents appeared to weather the storm.  California undisputedly has standing to defend the constitutionality of its own constitution, and it also has the authority to delegate the authority to mount that defense.  The California Supreme Court has already agreed, unanimously, that the proponents have been delegated that authority.  Justice Kennedy did not disagree.  To the contrary, Justice Kennedy distinguished the proponents from ordinary citizens who might lack a unique injury sufficient to sustain standing.  And later in the argument, Justice Kennedy criticized Perry’s counsel, suggesting that Perry’s position “allows governors and other constitutional officers in different States to thwart the initiative process.”  Justice Kennedy appeared highly unlikely to find a standing problem.

Many commentators have focused on the possibility of a DIG (dismissed as improvidently granted) based on Justice Kennedy’s comment that he “wonder[s] if – if the case was properly granted,” and his question to counsel for Proposition 8’s proponents at the beginning of rebuttal:  “And you might address why you think we should take and decide this case.”  These twenty-two words – in a sixty-eight-page transcript – constitute a thin reed on which to draw such a conclusion.  It would be unprecedented in the Court’s recent history to DIG a case that is the subject of so much national attention, interest, and importance.  Thus, while it is not impossible, it also appears highly improbable that this case will result in a dismissal.

Likely:  Justice Kennedy will sustain Proposition 8.

Assuming no dismissal, everything comes down to Justice Kennedy’s vote on the merits.  And here, there is not much to warm the hearts of Proposition 8 opponents.  Justice Kennedy did reference the importance of California’s 40,000 children who “want their parents to have full recognition and full status.”  But generally speaking, Justice Kennedy’s comments were much more sympathetic to Proposition 8’s supporters:

• “[T]here’s substance to the point that sociological information is new.  We have five years of information to weigh against 2,000 years of history or more.”

• “[Interracial marriage] was hundreds of years old in the common law countries.  [A ban on interracial marriage in Loving v. Virginia] was new to the United States.”

• “[T]he problem with the case is that you’re really asking . . . for us to go into uncharted waters, and you can play with that metaphor, there’s a wonderful destination, it is a cliff.”

Justice Kennedy even questioned the fundamental premise of whether the same-sex marriage issue “can be treated as a gender-based classification.”  “It’s a difficult question that I’ve been trying to wrestle with.”  If Justice Kennedy believes that same-sex marriage laws are not about gender classifications, but instead a state’s policy decision to uphold as a model what the state considers to be the family structure (both a father and a mother who are biologically connected to their children), then it is likely that he will vote to uphold Proposition 8.

Such a vote would not portend a belief that same-sex couples cannot have committed relationships or act as wonderful parents; they clearly can.  It would simply acknowledge as rational some states’ recognition that men and women bring something different to marriage and to parenting, a point that Justice Ginsburg made long ago in a very different context, in Duren v. Missouri: “Yes, men and women are persons of equal dignity and they should count equally before the law but they are not the same. There are differences between them that most of us value highly. . . . I think that we–perhaps all understand it when we see it and we feel it but it is not that easy to describe, yes, there is a difference.”

Indeed, such deference to state authority is entirely consistent with Justice Kennedy’s comments in today’s Windsor argument:

• “[Y]ou are at — at real risk of running in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”

• “The question is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage.”

• “You think Congress can use its powers to supercede the traditional authority and prerogative of the States to regulate marriage in all respects?”

The view of some is that marriage is only about satisfying the emotional fulfillment of adults, and has little or nothing to do with encouraging a legal attachment between children and their natural parents. Others believe that sexual identity is inconsequential, rendering mothers and fathers entirely interchangeable.  Some communities disagree with both views.  It seems entirely likely that Justice Kennedy will leave that debate to the political process rather than dismiss as animus some of the most ancient and cherished beliefs of half of the country.  As the Justice himself recently remarked at a speech in Sacramento, “A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say.”

Then again, these are only tea leaves.