There are two ways that the Supreme Court could effectively rule for gay marriage in California—without directly doing so. Here’s how.
The first is that the justices could find that the defenders of Proposition 8, the ban on same-sex marriage passed by the voters in 2008, aren’t properly in court, because they don’t have standing. The question here is what to do about an unusual situation: The governor and the attorney general of California decided not to defend Prop 8 as constitutional. So the group that put the measure on the ballot stepped in. Was that kosher? Clinton Solicitor General Walter Dellinger argued that it wasn’t in Slate, and in a brief to the court. Justice Breyer picked up on that brief at argument on Tuesday, and four other members of the court—Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and John Roberts—seemed also to express doubts about standing.
If the court says the Prop 8 folks have to go home, then they didn’t have standing on appeal before the 9th Circuit either, and the ruling that holds is Judge Vaughn Walker’s decision striking down Prop 8 after trial. He ordered the governor and the attorney general to tell all state officials to issue marriage licenses. And that’s probably what would happen. If a county clerk somewhere refused, the couple denied could go somewhere else.
The second option has been less examined, but it’s likelier: The court could change its mind about the wisdom of hearing the Prop 8 case in the first place. This is called “dismissed as improvidently granted,” or DIG for short. It may sound weird, but it tends to happen once or twice each term. During Tuesday’s argument, Justices Anthony Kennedy and Sonia Sotomayer strongly suggested they wanted a DIG. Kennedy knocked back Charles Cooper, the lawyer defending Prop 8, with this: “And you might address why you think we should take and decide this case.” When Cooper tried to answer, Sotomayor added: “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?”
Justice Scalia tried to make this sound like heresy: “It’s too late for that now, isn’t it? I mean, we granted cert. … That’s essentially like asking, you know, why did we grant cert?”
Yeah, why did you? Tuesday’s arguments showcased some of the reasons why that was a bad idea. The court might want to avoid creating precedent on the standing issue, which is especially muddy in this case. More likely, a majority of justices—notably including Justice Kennedy—might worry that a decision on the merits in the case can’t be limited to California, no matter how narrowly they might try to frame their holding. And from Tuesday’s arguments, it’s pretty clear that there aren’t five votes right now for the broad proposition that gays and lesbians have a constitutional right to marry.
Legally speaking, dismissing the case is different from getting rid of it for lack of standing. The 9th Circuit’s opinion striking down Prop 8 would hold, rather than Judge Walker’s, and the appellate court’s decision would stand as legal precedent. But practically speaking, the result is likely the same: same-sex marriage throughout California.
Why does the court ever dismiss a case once they’d taken it? The answer starts with a quirk in the process by which the court decides to hear an appeal in the first place. Only four justices need to agree to take a case (in legalese, this is called granting the writ of certiorari, or “cert” for short). That means a minority of the court can tee the case up for consideration even if a majority of five thinks it would be better off passing. But the minority’s power then evaporates. Not only can the majority issue a decision contrary to the one the minority might have been itching for, but—strangely—it can also simply dismiss the case as improvidently granted.
The justices usually dismiss a case only when it turns out, in the briefing and argument, that the issues aren’t presented in the clear way the court likes—in other words, when the case is a mess. That description applies here. The circumstances surrounding the passage of Prop 8 are weird, and unlikely to present themselves again. In 2008, the California Supreme Court found that same-sex couples have a fundamental right to marry based on the state constitution. Prop 8 took that right away, but left in place a comprehensive domestic partnership law. The state offered a half-hearted defense of Prop 8 at trial and then didn’t appeal. Prop 8’s backers appealed instead, but their standing to do so is contested. The 9th Circuit’s ruling striking down Prop 8 is carefully limited to these unusual facts, and so applies only to California.
When the court decided to hear this case, many of us wished they hadn’t. It seemed too soon for the justices to issue a sweeping ruling for gay marriage throughout the land, and unclear whether any other path toward striking down Prop 8 would appeal to them. After Tuesday’s argument, it seems likely the court has come to the same place, and will let gay marriage play out at the ballot box.