Prognosticating and the Supremes

As any lawyer will attest, predicting the outcome of Supreme Court cases is foolhardy in the extreme. But I’ve never let the prospect of making a fool of myself stop me, so I’m going to go out on a limb and do just that.

Yesterday, as practically everyone within earshot of a news report knows, the Court heard the first of two important cases on marriage equality. Yesterday’s arguments dealt with the appeal of the Ninth Circuit decision striking down California’s Proposition Eight; today’s will center on the constitutionality of DOMA, the “Defense of Marriage” Act.

I expect the Court to strike down DOMA, which–among other things–allows the federal government to treat marriages recognized by different states differently. Throughout our history, laws governing marriage have been the province of state governments. DOMA allows the federal government to treat legally married citizens from some states very differently than legally married citizens from other states. I expect the Court to follow its own ample precedents on federalism and equal protection; I’m pretty confident DOMA will fall.

That said, the betting in legal quarters on Proposition 8 has always favored a Court cop-out.

When the Justices asked for briefing on the issue of standing, most lawyers following the case saw that as a signal that they were looking for a way to dispose of the case on procedural grounds, that they were looking for a way to avoid ruling on the merits of the question whether marriage–which the Court has repeatedly ruled is a “fundamental right”–must be made available to gay citizens as well as straight ones.

As disappointing as it would be to have the Court sidestep that question, a decision to the effect that only the Governor and Attorney General of California had standing to appeal the judgment (or a ruling that review had been “improvidently granted”) would have the effect of reinstating the lower court’s decision. Although such a decision would affect only California, that state has some 11% of the population of the U.S. The number of citizens living in states with marriage equality would grow dramatically, adding to the pressures that are already mounting elsewhere.

As numerous observers have noted, in the absolute worst-case scenario, the Court’s decisions in these cases can only slow the inevitable. Same-sex marriage will be a national reality within the next few years, with or without the Court’s assistance. A decision containing a ringing affirmation of equality would be lovely, but its absence will not alter the eventual result.

So there you have my predictions. I hope I’m wrong about Proposition 8, but given the questions thrown at the litigants during yesterday’s arguments, I doubt it.

At this point, we’ll just have to wait and see.


  1. If they ‘pass’ on ruling for this legislation, meaning, not ruling on it, I’m going to start a campaign to call the Justices “Cowards.” It is long past due for every American to have their civil rights.

  2. Eugene, let’s not forget that DOMA was signed by President Clinton and that Joe Biden voted for it in the Senate (and Harry Reid).

    If they were for it back then, why would they be against it now? Maybe it’s more convenient for votes…

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