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Is the Supreme Court Going to Take the Cowardly Way Out on Marriage Equality?

Tuesday’s hearing on California’s Prop. 8 suggests progress will be state by state.

Photo Credit: A.M. Stan


Is same-sex marriage poised to be reborn in California? That’s the impression left after the Supreme Court’s hearing Tuesday, where Justices split along predictable ideological lines and the usual swing vote, Justice Anthony Kennedy, suggested that it was a mistake for the court to take up the California case—let alone produce a history-making ruling.

As a result, given the case’s convoluted history, some astute court watchers are saying the Justices may find a way to back off making any decision. That result would leave in place a lower court ruling that invalidated California’s Prop. 8, the anti-same-sex marriage law. Thus, following that tortuous legal path, in California, gay marriage would resume.

The “way out was directly suggested by Kennedy, and pursued by him in more than a fleeting way: dismiss this case as one that should not have been accepted,” wrote Lyle Denniston of SCOTUS blog, who has covered the Court for more than 50 years. “Should that be the outcome, it would be a huge let-down for political, legal and cultural warriors on both sides of the gay marriage issue, but would have the effect of leaving the issue to be worked out in state legislative halls and at the ballot box, one state at a time, at least for the time being.”

The Prop. 8 case is one of two same-sex marriage cases to come before the Court this week. The second, to be heard Wednesday, concerns whether the federal Defense of Marriage Act is unconstitutional because same-sex partners of federal employees aren’t treated equally under the law as heterosexual spouses. The California case is seen as raising more fundamental equality issues, because it involves marriage as a state-sanctioned institution, not just how a federal law works.

From the start of Tuesday’s Prop. 8 hearing, it was clear that the religious conservatives opposing same-sex marriage had little new to say. Charles Cooper, the lead attorney for Prop. 8’s backers—which was passed by voters in 2008 and banned gay marriage, only to be overturned by federal district and appeals courts—kept restating his side’s view that same-sex marriage was at odds with his definition of family. Genderless marriage would undermine child rearing, he said, which was an interest the state should protect.

To his credit, Justice Kennedy didn’t buy that predictable argument. He said that “40,000 children” were already being raised by same-sex couples and that they have an interest in their parents’ legal rights. But he also said that it was too soon in the history of same-sex marriage as an institution for the Court to weigh in and make a civil rights decision for the nation.

As Cooper floundered under questioning from the Court’s liberal block, Justice Antonin Scalia had to interrupt to rescue him. Scalia, as he often does, raised an issue that has nothing to do with the case, saying some states ban gay adoptions. Scalia was quickly rebuked by Justice Ruth Bader Ginsburg, who said that wasn’t in the case before the court.

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