Supreme Court may dismiss Prop 8 case

By Michael J.W. Stickings

From the Times, it looks like a majority opinion may be emerging on the Supreme Court regarding the same-sex marriage case currently before it:

As the Supreme Court on Tuesday weighed the momentous question of whether gay and lesbian couples have a constitutional right to marry, six justices questioned whether the case, arising from a California ban on same-sex marriages, was properly before the court and indicated that they might vote to dismiss it. 

"I just wonder if the case was properly granted," said Justice Anthony M. Kennedy, who probably holds the decisive vote, in a comment that showed a court torn over whether this was the right time and right case for a decision on a fast-moving social issue.

Justice Sonia Sotomayor seemed to share that concern. "If the issue is letting the states experiment and letting the society have more time to figure out its direction," she said, "why is taking a case now the answer?"

This would hardly be the optimum outcome for same-sex marriage supporters such as myself. But it wouldn't be a bad one, and it may be the best possible one from this court. 

For the liberals on the Court, it would be a victory against a generally 5-4 conservative majority, with same-sex marriage turned back from a judicial issue to a legislative issue at the state level, where the momentum, as throughout the culture, is for marriage equality.

For Kennedy, the "swing" justice, it would allow him to avoid having to make a decision one way or the other on the merits.

And for Roberts, the chief justice who is clearly concerned about his, and his court's, place in history, it would allow him to rule against for Prop 8, and indirectly for same-sex marriage, and so keeping his court in line with public opinion and the course of history, without actually having to come out and say so explicitly. (He surely doesn't want this to be his Dred Scott. And he surely doesn't want to go down in history as a wacko extremist like Scalia.)

So while it's always a risk to try to predict what the Supreme Court will do, it looks like the justices will either rule that the petitioners lack standing or otherwise dismiss the case because they can't reach a majority decision one way or the other on the merits.

As Tom Goldstein writes at SCOTUSblog, "[t]he upshot of either scenario is a modest step forward for gay rights advocates, but not a dramatic one. The Court would stay its hand for some time for society to develop its views further."

And, again, it's clear where society's views are headed.