Gay marriage at high court: How a case can fizzle

March 28, 2013 @ 12:04 am


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WASHINGTON (AP) - Late in the oral argument over same-sex marriage in California, Justice Anthony Kennedy made a startling comment, given the months of buildup and mountain of legal briefs that have descended on the justices.

"You might address why you think we should take and decide this case," Kennedy said to lawyer Charles Cooper, representing opponents of same-sex marriage.

One might have thought the court had already crossed that bridge.

But now the justices were openly discussing essentially walking away from the case over California's Proposition 8, a voter-approved ban on gay marriage, without deciding anything at all about such unions.

Indeed, this case offers a rare glimpse at the court's opaque internal workings, in which justices make cold political calculations about what to do and Kennedy's often-decisive vote can never be far from his colleagues' minds.

The court on Wednesday concluded two days of arguments involving gay marriage. In the second case, a constitutional challenge to a portion of the federal Defense of Marriage Act, a majority of the court appeared likely to rule that legally married gay couples should be able to receive a range of benefits that the law currently reserves for straight married couples.

The decision to hear the DOMA case was easy. The Supreme Court almost always has the final word when lower courts strike down a federal law, as they did in this case.

Proposition 8's route to the Supreme Court was not as obvious. The appeals court ruling under review by the justices seems to have been written to discourage the high court from ever taking up the case because it applies only to California and limited a much broader opinion that had emerged earlier from the trial court.

And yet in December, the court decided it would hear the case. It takes a majority of five to decide a case a particular way, but just four justices can vote to add a case to the calendar. And the court does not disclose how the justices vote at this stage.

It seems apparent after the argument, though, that it was the conservative justices who opted to hear Proposition 8. It also seems that one factor in their decision was that this could be their last, best opportunity to slow the nation's march toward recognition of gay marriage at a time when only nine states and the District of Columbia allow gays and lesbians to marry _ despite a rapid swing in public opinion in favor of gay marriage.

From their comments and questions Tuesday, Justices Samuel Alito and Antonin Scalia indicated they preferred what they called the cautious approach: allowing the debate over gay marriage to play out in the states and not overturning by judicial fiat the will of California voters who approved Proposition 8 in 2008. Justice Clarence Thomas, as is his custom, said nothing during the argument, but he and Scalia were dissenters in the court's earlier two gay rights cases in 1996 and 2003.

Chief Justice John Roberts also had tough questions for lawyers for the same-sex couples who sued for the right to marry, and for the Obama administration.

Scalia sought to counter Kennedy's comment, and a similar one from Justice Sonia Sotomayor, that maybe the court should get rid of the case.

"It's too late for that, too late for that now, isn't it? I mean, we granted cert," Scalia said, using the legal shorthand for the court's decision to hear a case. "We have crossed that river, I think."

Once or twice a term, occasionally more often, the justices do dismiss cases after they have been argued, without rendering opinions and establishing a rule for the whole nation. The language they use is the wonderfully vague "dismissed as improvidently granted." Roughly translated, it means "sorry for wasting everyone's time."

That is one potential outcome, discussed publicly by Kennedy and Sotomayor.

Another possibility would be a decision limited to the technical legal question of whether the Proposition 8 supporters have the right to defend the measure in court. If they don't, the court can't reach the broader issues in the case.

On this point, Roberts' view seemed more in line with questions from some of the liberal justices.

So why would a justice who appeared favorably inclined to California's ban on gay marriage want to rule that the case should not even be in front of the court?

The answer is that Roberts might want to dispose of the case in this narrow way if he saw a decision in support of gay marriage emerging and wanted to block it. Or, he might choose this route if the justices appeared unable to reach a decisive ruling of any kind.

Narrowly based decisions sometimes seem more attractive to the justices than fractured rulings.

One example is the court's 2009 decision in a voting rights case in which eight of the justices agreed to sidestep the looming and major constitutional issue in the case after an argument in which the court appeared sharply split along ideological lines.

___

Follow Mark Sherman on Twitter: www.twitter.com/shermancourt


(Copyright 2013 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.)
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Comments (19)


  • Add A Comment

  • longwayhome wrote...
    Another losing proposition for republicans
    December 7, 2012 8:35 pm
    Racist bunch of homophobic neanderthals are going to lose more voters every time they try and pull some more crap on the American people. They are tired of the lies, the wars and the stonewalling that goes on in Wash. republican party.... R.I.P. Actually just go away, I could care less if you guys have any peace at all.
    { "Thumbs Up":"1","Thumbs Down":"-1" }
  • FormerMarineSgt wrote...
    I really wish that MyNorthwest would STOP recycling old comments...
    March 25, 2013 7:12 am
    The first comment posted on this story was from Dec. 7 2012 - almost an entire 4 months ago. I see this happen quite often on other news stories here too. Either MyNorthwest is recycling old news stories OR they are recycling old postings.. Either way, it's pathetically bad.
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  • Pair o'dimes wrote...
    Former
    March 27, 2013 9:04 pm
    I saw a comment last week from 2001. When did they start these posts?
    { "Thumbs Up":"1","Thumbs Down":"-1" }
  • It's me! Ha ha! wrote...
    So Lefties
    March 26, 2013 6:41 am
    how much crying and screaming will you Parrots pour out here all over the boards when nothing is done by the government to promote your precious Militant Homosexual agenda?

    Will your Dear Leader use his ministry of Propaganda (Left wing media) to advance the Homosexual agenda?

    You Parrots are all good with this!

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  • Booger Barnes wrote...
    agenda
    March 26, 2013 8:58 am
    What exactly is this agenda you speak of?
    { "Thumbs Up":"1","Thumbs Down":"-1" }
  • It's me! Ha ha! wrote...
    agenda
    March 26, 2013 12:22 pm
    Educate yourself!
    { "Thumbs Up":"1","Thumbs Down":"-1" }
  • Booger Barnes wrote...
    Ha!
    March 26, 2013 5:18 pm
    You mean I need to repeat an old talking point as a valid arguument. Or do you mean you have no idea what youre talking about? If two people getting married, gay or not, affect your life then you are the one with a problem. Ive been married 20 years to my wife and two gay people getting married has absolutely any bearing on my marriage. Marriage is just a word. Thats it.
    { "Thumbs Up":"1","Thumbs Down":"-1" }
  • It's me! Ha ha! wrote...
    Marriage is a Sacrament from God.
    March 27, 2013 7:10 am
    Between ONE man and ONE woman.

    That is FAR more than just a WORD! I hope that you can appreciate that.

    { "Thumbs Up":"1","Thumbs Down":"-1" }
  • Booger Barnes wrote...
    HA
    March 27, 2013 7:50 am
    I don’t. Marriage is just a word. What I have with my wife isn’t defined by a word or what someone else is doing. What someone else does with their marriage has no effect on mine what so ever. As I said before, if it effects your marriage then you have the problem. Theres no such thing as the sanctity of marriage.. Its just a tired talking point. The argument that its supposed to be a man and a woman because only a man and a woman can procreate is also a joke. If that’s the argument then anyone over 50 shouldn’t be allowed to be married because they can’t have kids either.
    { "Thumbs Up":"1","Thumbs Down":"-1" }
  • Pair o'dimes wrote...
    Just sayin..
    March 27, 2013 9:16 pm
    If marriage is a sacrament from God, then what the government has to say about marriage is meaningless. Government cannot validate or invalidate God's sacraments. While I agree that marriage is from God, I also believe a marriage license is not. If the government started issuing licenses to partake in communion would it somehow make communion valid for nonbelievers? I don't think so. So expanding legal relationships is really more about contract law instead of God's law.
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  • Rangerhawk wrote...
    The real trick
    March 27, 2013 10:01 am
    Is the "one" and "one." How can they say Gay Marriage is ok and plural marriage is not. In fact, it may be religious discrimination against Muslims. Oh no!
    { "Thumbs Up":"1","Thumbs Down":"-1" }
  • Booger Barnes wrote...
    huh?
    March 27, 2013 10:25 am
    discrimination against Muslims? You mean Mormans? either way plural marriage is a completely differant debate. this issue is that its leagal for two people to marry each other depending on your sexual preferance. As far as the sacrament from God. That is not what we base laws on. Or should I be able to sell my daughter into slavery. God gave that the go ahead in the bible.
    { "Thumbs Up":"1","Thumbs Down":"-1" }
  • Rangerhawk wrote...
    Current Sharia law (loosely) is 4 wives
    March 27, 2013 9:11 pm
    The more money you have though, the more Allah you can have.
    { "Thumbs Up":"1","Thumbs Down":"-1" }
  • calapete wrote...
    MUslims?
    March 27, 2013 10:31 am
    you mean Christians don't you? The ones who slept with boy prostitutes and had multiple wives.
    { "Thumbs Up":"1","Thumbs Down":"-1" }
  • FormerMarineSgt wrote...
    It's funny how the party of States rights and smaller goverment....
    March 27, 2013 10:43 am
    It's funny how the party of States rights and smaller goverment keeps forcing Federal law to override states right's AND keeps demanding that they have the right to force us all to live in only 'the proper way' - which is the exact opposite of smaller less intrusive government.
    { "Thumbs Up":"1","Thumbs Down":"-1" }
  • wsualumn wrote...
    I Find It Interesting
    March 27, 2013 8:34 pm
    How the conservatives want to use religious doctrine as their justification against gay marriage. There is SUPPOSED to be a separation of church and state. Wouldn't that be unconstitutional? Isn't that what the conservatives complain about Obama doing? They can be a confusing bunch at times.
    { "Thumbs Up":"1","Thumbs Down":"-1" }
  • Rangerhawk wrote...
    Keep DOMA and throw out the Estate Tax
    March 27, 2013 9:21 pm
    Then give what's her name a free bus ticket to Canada.
    { "Thumbs Up":"1","Thumbs Down":"-1" }
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