Today’s hearing at the United States Supreme Court on the validity of Proposition 8 was quite fascinating both from a substantive and historic perspective. Substantively, the key issues were standing, and the breadth of the claims made by the parties. The standing issue focuses on whether the proponents of the anti-gay-marriage initiative have the right to bring this appeal to the court, where the State of California officials refused to do so. Most of the justices seemed genuinely critical of extending appeal rights to the proponents, given that they do not truly represent the state’s interest. There was discussion of the various options the state might have, including naming an independent party to challenge the lower court’s ruling, but this didn’t make much sense to the other justices.
On the merits, the discussion mostly focused on whether this could really be a California-onlly ruling – on the grounds that once the State Supreme Court had extended marriage rights to same-sex couples, it was wrong for the voters to take those rights away – or whether they needed to rule on the broad right of same-sex couples to marry everywhere. It seemed absurd to some of the justices, and rightly so, that states that offered no rights (neither domestic partnership or some kind of constitutional protection) would be left alone, while those states that had gone most of the way to protect same-sex couples, such as California, would be more heavily scrutinized.
From a historical perspective, what is most important was listening to the complexity of the arguments, the sincerity of the claims and responses, and the realities of same-sex couples being discussed at such a high level. Even the proponents of Proposition 8 did not really argue against same-sex couples having marital rights; rather, they emphasized their assertion that it would be premature for the courts to intervene, preferring instead to let the political process work this out.
But perhaps most surprising was the comment by Justice Kennedy, asking whether it was possibly wrong for the court to have taken on this case in the first place. Were his suggestion to gather support, the Court could simply say “sorry, never mind” and let the 9th Circuit’s positive ruling stand. Should this be the outcome – or perhaps more likely, a refusal to rule on the merits based upon the standing question – marriages would be allowed once again in California, leaving the bigger constitutional questions unanswered for years to come.