David Cruz, an expert on civil rights and constitutional law, made his way from USC to D.C. to observe the oral arguments on California's Proposition 8 ban on gay marriage this morning. In a packed courtroom, he saw a seriousness in the crowd lightened by moments of laughter as justices made small jokes, followed by an intense grilling of the attorneys for the parties.
Cruz tells L.A. Weekly that supporters of gay marriage who hoped for a historic U.S. Supreme Court decision are likely to be disappointed:
According to Cruz, given the questioning by a majority of justices today, “It seems plausible that we might see a relatively narrow decision getting rid of the appeal by the Prop. 8 sponsors on more technical grounds.”
“The Court could say ballot sponsors do not have federal standing, or authority to pursue litigation in the federal courts, even if state law lets them defend for the state; that would lead them to remand the case, wipe out the Ninth Circuit ruling [finding Prop. 8 unconstitutional], but probably leave the trial court ruling in place, so same-sex couples would be able to resume getting married in California.”
Justice Anthony Kennedy, often the swing vote, raised the idea of dismissing the case twice during the hearing. Essentially, if Kennedy and a majority of justices vote to dismiss the case, the appeals court ruling — which allowed gay marriage by striking down the proposition — will stand in California.
Cruz says he strongly suspected the arguments would go the way they did:
“The Justices' questions did little to nothing to indicate that there would be a majority in favor of a sweeping ruling in favor of a constitutional right to marry for same-sex couples.”
Tomorrow morning, the Supreme Court will hear arguments from the same attorneys about the federal Defense of Marriage Act of 1996, which defined marriage solely as a union between opposite-sex couples.
People on social media sites such as Twitter and Facebook widely spread the red HRC equality symbol today, in support of marriage equality. Candlelight vigils will continue in communities all week, but the court's decision on Prop. 8 may not be known until June.
Update: Cruz sent further thoughts via email. To wit:
If anything, more Justices expressed skepticism about the House committee's legal authority to be litigating in defense of DOMA than had voiced doubts the day before about the authority of Prop 8's proponents to defend that law on appeal. What was less clear (or unclear) is whether a majority of the Justices are prepared to reach the question of DOMA's constitutionality or whether the Court will decide not to because the federal government agrees with DOMA plaintiff Edie Windsor that it's an invalid law.
If the court chooses to dismiss the Windsor appeal, DOMA would remain on the books and same-sex couples married in some state generally would remain ineligible for federal benefits tied to marriage until Congress repeals DOMA, the Supreme Court gets some better case for deciding the issue, or enough lower court decisions hold it unconstitutional they the President decides to stop enforcing it.