It is billed as one of the great battles of legal history. In truth, the battle over Proposition 8’s legality in the highest court in the United States might well be a fizzer, a side-step rather than a full trot. When California’s electors voted for Proposition 8 in 2008, it went against the legal reasoning of the California Supreme Court which had proclaimed that the state’s constitution guaranteed the right to gay marriage. 18,000 same sex couples who had taken advantage of the legal reasoning of the court find themselves in legal limbo. The lawyers find themselves very busy indeed.
Proposition 8 itself came up against a now retired Judge Vaughn R. Walker, who was subsequently attacked by its sponsors. His own sexual orientation was apparently a disentitling point for opponents, despite being a Republican appointee and firm libertarian. In any case, his decision opened the legal route over a battle that has captivated activists on both sides of the marriage fence.
Certainly, the celebrity set were there to pronounce upon the legal deliberations of the Supreme Court, which are in full swing this week. Actor-director Rob Reiner spoke of his anticipation at the ruling in June “and believe[s] that the Supreme Court will come down on the side of fairness, dignity and equality” (LA Times, Mar 26). That all said, grand words do not necessarily produce grand results.
A more sober appraisal was offered by Politico’s Josh Gerstein (Mar 26). “For all the toasting in Washington and excitement among gay rights groups about the historic oral arguments this week, there’s still a chance their set of cases could culminate in loss.” This might well happen not merely on Prop 8 itself but the federal Defence of Marriage Act, which enshrines heterosexual union as the cornerstone of marriage.
The Supreme Court justices may well choose to veer away from a clear decision on whether the Constitution reveals any core right for gay marriage, whatever the vox populi might say about the matter. This is understandable – US courts exercise enormous power, sometimes to the detriment of public views as expressed via ballot. As the former California Chief Justice Ronald M. George explained, “the people have a right to amend their Constitution.”
In the meantime, there are only whisperings, clues and the occasional broadside about where the case will go. Justice Anthony Kennedy, for one, sounded off about the “immediate legal injury” inflicted by Prop. 8 on the children of same-sex unions. Having himself drafted the 2003 decision that prevented states from criminalising gay sex acts, he was all ears to the problems of prejudice. “They want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?”
Notwithstanding the stance, the Justice reserved a few harsh words for his legal colleagues lower down the judicial chain. “I just wonder if the case was properly granted.” Bets are being hedged, even if punters are willing to splash out. “There’s zero possibility [of a loss],” suggested University of Chicago law professor Geoffrey Stone. The tea leaves can be found not merely in the majority verdict against the sodomy laws in 2003, but Romer v Evans (1996), a decision which still reverberates in terms of what states can or can’t do in imposing disabilities on sections of the populace. The amendment to the Colorado state constitution preventing any city, town or country in state recognising gay and lesbian individual individuals a protected class was struck down. “Homosexuals,” reasoned Justice Kennedy in Romer, “are forbidden the safeguards that others enjoy or may seek without constraint.”
The road to legal wisdom can still be a dull one. The current case is interesting for the procedural wonks keen on seeing how laws of standing are decided. “Have we ever granted standing to proponents of ballot initiatives?” queried Justice Ginsberg. The answer that came from Charles J. Cooper on behalf of the petitioners was a clear no. Instead, Cooper argued that, precisely because the state of California itself would have standing, its officials might empower a “very clear and identifiable group of citizens” with that legal basis.
Former Republican US Solicitor General Theodore Olson argued that Proposition 8 “was stigmatising a class of Californians based upon their status and labelling their most cherished relationships as second-rate, different, unequal and not OK.” The ever rock-solid conservative Justice Antonin Scalia had little truck with that. “When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the 14th Amendment was adopted?” The writing of his decision is already on the wall.
The vistas open by a strong majority decision of the court will be considerable. But the intricacies of American constitutional law may allow the court to exit without a clear stance on whether US law allows for gay marriage. The default position in many decisions in history has been to leave the matter to the states to decide. California’s ban, in that case, might be reinstated. A narrow right to gay marriage might also be “found” specific to some states with constitutions such as California’s, or the bench might go the whole hog and find a right across the country. All of this, even as the popularity for gay marriage has reached unprecedented levels in the U.S.
Not to be deterred, the optimists will find, even in any loss, hope. “Even if you lose the case, and I think that’s very unlikely, you would say that the case has been a success because it’s changed public opinion so dramatically,” intones former advisor to Bill Clinton, Richard Socarides. That may well be – in time. The law will simply have to limp and lag.
Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: email@example.com