SCOTUS hearing, but not listening, on same-sex marriage

Last week, the Supreme Court herd oral arguments in two gay rights cases involving Proposition 8 (which banned same-sex marriage in California) and the Defense of Marriage Act (DOMA, which bars federal recognition of same-sex marriages). To many, the outcome of these cases will be the most important civil rights rulings of a generation.

But will they truly? Last week’s arguments seriously called into question that notion, as the justices clamored for a way to rule narrowly in both cases. Judging from the justices’ questions, there seems to be little chance that the court will use its power to bring marriage equality to the entire country. And if their rulings do force California and the federal government to recognize same-sex marriages, that noble result will be achieved through arcane technicalities and cramped legal logic.

The first case heard by the court, Perry v. Hollingsworth, has the potential to be the Brown v. Board of Education of the 21st century. Technically, Perry deals only with California’s Proposition 8, a referendum passed in 2008 to strip marriage rights from gay couples. But the legal case against Prop 8, headed by conservative luminary Ted Olson and liberal hero David Boies, legal adversaries in Bush v. Gore, quickly became something more. Olson and Boies decided not to limit their case against Prop 8 to California, but rather to use the case as a vehicle to overturn all same-sex marriage bans throughout the U.S.

This move, which would establish a constitutional right to marriage for gay people, remained gay rights activists’ great white hope, until last Tuesday. The justices’ questions during oral arguments quickly crushed any optimism for a nationwide ruling on Prop 8. A majority of justices questioned whether the proponents of Prop 8 had standing—that is, whether they were constitutionally qualified to challenge the case in court.

It’s a legitimate concern. California delegated the task of defending Prop 8 to mere citizens of the state, as the government had no interest in supporting a bigoted, hateful measure.

If the court decides that proponents of Prop 8 do not have standing, they will simply toss the case out, allowing the lower court’s ruling to stand. This, in effect, would re-legalize same-sex marriage in California, as the lower courts all overturned the measure. That would be a noble outcome, no doubt, but it would also be the result of cowardly calculus. As Justice Antonin Scalia noted, the court would seem to have implicitly resolved the issue of standing by agreeing to hear the case. Now that each side has made its arguments, the standing question is surely eclipsed by the greater question of justice.

But on that front, too, the court seems ready to punt. The legal argument for same-sex marriage is simple: the 14th Amendment of the Constitution guarantees “equal protection of the laws.” To deny gays the right to marry, according to this argument, is to deny them equal protection. The four liberals of the court—Justices Ruth Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan—seem ready to agree. The four conservatives—Justices Antonin Scalia, Samuel Alito,  Chief Justice John Roberts, and Clarence Thomas—obviously disagree. Roberts in particular was irked by the notion that the Equal Protection Clause covered gays, suggesting that the LGBT community is too politically powerful to deserve constitutional protections.

Thus the decision as to whether millions of gay Americans will be afforded their constitutional rights falls on one man: Justice Anthony Kennedy. Because Kennedy authored the court’s previous decisions honoring gay rights, Romer v. Evans (1996) and Lawrence v. Texas (2003), activists hold out hope that he would provide the necessary fifth vote for nationwide marriage equality.

But during the oral arguments on Prop 8, Kennedy signaled a deep ambivalence about extending the Equal Protection Clause to same-sex couples. The justice probably won’t rule to uphold Prop 8, but he almost certainly won’t use the case to strike down all same-sex marriage bans. More likely is that he’ll either dismiss the case on standing or strike down Prop 8 exclusively, allowing other marriage bans to stand.

Oddly, during arguments in U.S. vs. Windsor, Kennedy came out swinging against DOMA, joining the liberal justices in vigorously disputing the law’s constitutionality. Why the change in heart? Irritatingly, Kennedy doesn’t seem to care too much about gay couples’ rights; what he cares about are states’ rights to grant marriages to anyone they choose. DOMA, a federal law, tramples these rights, and so Kennedy will undoubtedly vote to strike it down. His vote, added with the four liberal justices’, will most likley lead to the death of DOMA. The law is destined for the dustbin of history.

Still, it’s disappointing that this would-be landmark case will boil down to Kennedy’s obsession with states’ rights. Few people under the age of 30 doubt that the Constitution guarantees gay people equal rights. Four Supreme Court justices agree. With one more vote, Perry and Windsor could be used to remedy the terrible injustice of marriage equality. For now, though, the struggle will probably have to continue state by state. The court’s rulings will likely keep Prop 8 dead and invalidate DOMA. That will leave 41 states without marriage equality; 41 more battles to fight.