The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy. For the more liberal members of the Court, there was no clarity on how broadly they would rule.
But Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail. He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new. He also noted the doubts about the petitioners’ standing. So his suggestion was that the case should be dismissed.
If those features of the oral argument hold up – and I think they will – then the Court’s ruling will take one of two forms. First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing. That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8. Another case with different petitioners (perhaps a government official who did not want to administer a same-sex marriage) could come to the Supreme Court within two to three years, if the Justices were willing to hear it.
Second, the Court may dismiss the case because of an inability to reach a majority. Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him. Others on the left may agree. That ruling would leave in place the Ninth Circuit’s decision.
(The puzzle will be what judgment the Court will enter if there are, for example, three votes to dismiss as improvidently granted, two to find no standing, three to reverse, and one to affirm.)
The 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. But combined with a potentially significant ruling in the DOMA case being argued tomorrow, the Term will likely nonetheless end up as very significant to gay rights.
In other words, the court really seems to want to punt. Both liberal and conservative justices appear to be saying that a narrow ruling that would only affect California is not in the cards, so a tie or a punt would effectively be SCOTUS getting a ruling that would only affect California without having to actually make it.
But the ruling on DOMA won't be as easy to duck, it being a federal law and all. Still, SCOTUS could conceivably punt there too and say that a call this big has to be made by the people through the legislative and executive branches.
My gut feeling says they're ducking Prop 8 because the big money decision is on DOMA. We'll see what the Justices have to say tomorrow.