WASHINGTON (AP) — Late in Wednesday’s argument over same-sex marriage in California, Justice Anthony Kennedy made a startling comment, given the mountain of legal briefs that have fallen on U.S. Supreme Court justices.
“You might address why you think we should take and decide this case,” Kennedy said to lawyer Charles Cooper, representing opponents of gay marriage.
One might have thought the court had already crossed that bridge.
But now the justices were openly discussing walking away from the case over California’s Proposition 8, a voter-approved ban on gay marriage, without deciding anything about it.
The court on Wednesday concluded two days of arguments on gay marriage. In one case, a constitutional challenge to a portion of the federal Defense of Marriage Act, a majority of the court appeared likely to rule that legally married gay couples should be able to receive benefits laws reserve for straight married couples.
The decision to hear the DOMA case was easy. The Supreme Court almost always has the final word when lower courts strike down a federal law, as they did in this case.
Proposition 8’s route to the Supreme Court was not as obvious. The appeals court ruling under review seems to have been written to discourage the high court from ever taking up the case because it applies only to California and limited a much broader opinion that had emerged earlier from the trial court.
And yet in December, the court decided it would hear the case. It takes a majority of five to decide a case a particular way, but just four justices can vote to add a case to the calendar. And the court does not disclose how justices voted at this stage.
It seems apparent, though, that it was the conservative justices who opted to hear Proposition 8. It also seems that one factor in their decision was that this could be their last, best opportunity to slow the nation’s march toward gay marriage. Nine states and the District of Columbia allow gays and lesbians to marry.
From their comments and questions, Justices Samuel Alito and Antonin Scalia indicated they preferred the cautious approach: allowing the gay marriange debate to play out in the states and not overturning the will of California voters who approved Proposition 8 in 2008. Justice Clarence Thomas said nothing during the argument, but he and Scalia were dissenters in two gay rights cases in 1996 and 2003.
Chief Justice John Roberts had tough questions for lawyers for the same-sex couples who sued for the right to marry, and for the Obama administration.
Scalia sought to counter Kennedy’s comment, and one from Justice Sonia Sotomayor, that the court should get rid of the case.
“It’s too late for that, too late for that now, isn’t it? I mean, we granted cert,” Scalia said, legal shorthand for the court’s decision to hear a case. “We have crossed that river, I think.”
Once or twice a term the justices dismiss cases after they have been argued, without rendering opinions and establishing a rule for the whole nation. The language they use is “dismissed as improvidently granted.” Roughly translated, it means “sorry for wasting everyone’s time.”
That is one potential outcome, discussed publicly by Kennedy and Sotomayor.
Another possibility is a decision limited to the technical question of whether the Proposition 8 supporters have the right to defend it. If they don’t, the court can’t rule other issues.
One example is the court’s 2009 decision in a voting rights case where eight justices agreed to sidestep the major constitutional issue after an argument where the court appeared sharply split along ideological lines.