Will Prop 8 End Not With a Bang but a Legal Whimper?

Nondiscrimination is a "wonderful destination," as Justice Kennedy said, but we still don't know if he'll lead the nation there

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Mark Wilson / Getty Images

A pro-gay-marriage banner is held in front of the Supreme Court in Washington on March 26, 2013

Justice Anthony Kennedy — widely viewed as the pivotal swing vote — got pulses racing early in today’s same-sex-marriage argument at the Supreme Court. There is “immediate legal injury” being done to 40,000 California children being raised by same-sex parents who are not allowed to marry, he insisted. These children “want their parents to have full recognition and full status,” he said — and “the voice of those children is important in this case.”

Court watchers immediately flooded Twitter and live blogs with the news: after that “vivid” comment, it was suddenly looking like there might be five votes — Justice Kennedy and the court’s four liberals — for a sweeping pro-gay-marriage ruling. But before long, Justice Kennedy seemed to reverse direction, openly questioning whether the court had made a mistake in accepting the case at all.

(MORE: Court Could Avoid Ruling on Gay Marriage)

Today’s oral arguments — in a challenge to California’s Proposition 8, which banned same-sex marriage — took place under a glaring national spotlight. Television cameras and throngs of reporters descended on the Supreme Court. Crowds of ordinary citizens gathered out front to express their views and to try to influence the Justices, in some cases with wacky signs in tow. (Sample: “Gays have every right to be as miserable as I make my husband.”) For months now, there has been a growing expectation that the Supreme Court would use this case to issue a landmark constitutional ruling, resolving for the history books whether same-sex couples have a right to marry.

But the Justices’ questions at oral argument suggested another possibility: that the Proposition 8 case may end not with a bang but with a hypertechnical legal whimper. It is always perilous trying to predict what the Supreme Court will do based on the Justices’ comments at oral argument, but it now may be that the likeliest outcome is a punt on the hard constitutional questions: the Justices may simply dismiss the case. That would most likely mean that a lower-court ruling invalidating Prop 8 would remain in effect — which would keep same-sex marriage legal in California but not affect other states.

(MORE: Cohen: Why the Supreme Court Is Likely to Rule for Gay Marriage)

That is one way to count the votes at today’s oral argument: put Justice Kennedy with the court’s four conservatives, and there are not enough votes for a bold pro-gay-marriage ruling. It is not, however, the only way. At another point in the argument, Justice Kennedy said the case could take the court into “uncharted waters” or a “wonderful destination” — though he also worried that it could be a “cliff.” In that brief and highly contradictory comment — which is already being closely parsed — Justice Kennedy seemed to be deeply ambivalent: worried about the risks of a broad pro-same-sex-marriage ruling, while nevertheless excited about the possibilities.

The court will have another chance to wrestle with the question tomorrow, in a second case that challenges the Defense of Marriage Act, which bars the federal government from recognizing same-sex marriages and decrees that states do not have to recognize same-sex marriages performed in other states. That case, however, could well be resolved as a question of states’ rights or other legal doctrines that do not directly engage the key question of whether same-sex couples have a constitutional right to marry.

(MORE: Why Republicans Are Saying “I Do” to Gay Marriage)

Even some supporters of same-sex marriage think that a modest Supreme Court ruling — like one that allows same-sex marriages to continue in California but does not extend them further — could be a good thing. Political support for gay marriage continues to grow by the day — Senator Mark Warner of Virginia just got on board yesterday — and the momentum shows no sign of slowing. Advocates for a political solution argue that there will be less polarization and backlash if same-sex marriage gets adopted through the political process.

Appealing though that argument may be in some ways, it has serious flaws. If the Supreme Court fails to act, gay people in some parts of the country may have to wait many years before their home states recognize their right to marry — or they may have to move in order to marry. And rights that legislatures give they can also take away. Only the Supreme Court can declare that gay people have a fundamental constitutional right to marry — no matter what the politicians say.

(PHOTOS: Divided: Same-Sex Marriage Demonstrations)

It is for these reasons that how Justice Kennedy comes down matters so much. Same-sex marriage is no longer the “uncharted waters” that he fears. We now have evidence from across the country that gay marriage has enormous upsides — including for the children Justice Kennedy rightly worried about — and no discernible downsides. Nondiscrimination is, in all its forms, a “wonderful destination,” as Justice Kennedy so aptly put it. By the time the Supreme Court’s term ends in late June, we will know if he proved courageous and forward-looking enough to lead the nation there.

MORE: Pride and Prejudice: An Interactive Timeline of the Fight for Gay Rights


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Welcome back to life, Sodom and Gomorrah!  Good bye, Sanity.


%s "Joe's a gun store owner and NRA member—and he supports background checks for all gun sales: %sZG%sAct


@TIMEIdeas We say discrimination but we do not define properly whose substance are discriminate


@TIMEIdeas Where are you people taking this nation? Hell? AIDS. Are you people trying to find the most disease this world can discover?



If gay marriage is ok, why not make polygamy, incest, or pedophilia, OK?

And all of aforementioned in the name of 'LOVE' will justify them all? Do the "ends" justify the "means" at any cost?
Are gays really being honest with themselves and others in "coming out of the closet"? Why the need for gay "pride" in the first place decades ago?

Perhaps someone can explain why they want to shame others for their hate or homophobia when they themselves needed to advertise and promote their own "pride" well before anyone knew about gay pride?

Doesn't the medical community recommend that you, "Wash your hands after you go to the bathroom."?

Yet, now there are some in the medical community that now say it's OK to "Sleep with the waste that gets flushed down in the toilet?" and that it's possible to live a perfectly normal life.

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Mr. Cohen- do more research before you write your next article in such a biased fashion. "gay marriage has enormous upsides and no discernible down-sides."  Almost all upsides (which primarily benefit only homosexual couples and not the vast majority of society) can be achieved with civil unions (and should be).  Downsides include a loss of religious liberty (which you can see happening in Europe and at home- remember that photographer who declined to be hired for a same-sex wedding in, I believe, New Mexico). They also form less stable and capable of raising those children who they choose to artificially or surrogately conceive (speaking only of capabilities made possible through gender complementarity).  The State does not have a need to incentivize such relationships through tax breaks etc because they are not equal in fulfilling a state interest.

Marriage is not a right- it is a conglomeration of rights and incentives.  Same-sex couples are due the rights- but not the incentives (some of which have connection to child rearing (think critically about the cases when it is profitable for a couple to file taxes jointly.))

Furthermore, riddle me this- if gay marriage is constitutional- what arguments are left- which supporters have not railed against- for not allowing polygamy or poly-amorous marriages?

The Supreme Court should uphold proposition 8 and section 2 of DOMA so that States are guaranteed their constitutional power (affirmed by the supreme court in many cases) to protect the morals and general order of their state and people.  Section 1 of DOMA is a different story. 



Why do we vote??  Twice California voted against it.  The people spoke and it doesn't matter.