In the national debate gay marriage advocates appear triumphant, even though the Supreme Court justices strongly indicated they don’t intend to issue the sweeping ruling that gay advocates want. Despite the political pressure, the justices don’t appear ready to say that same-sex marriage is a constitutional right, but instead in the arguments they sought to narrow how they decide the questions before them.She notes that
The high court seemed ready to let that battle in the ballot boxes continue, which is what traditional marriage supporters had advocated. Both the DOMA and Prop 8 cases are exceedingly complex, and the court has many options for resolving them. The justices could issue broad rulings, issue narrow rulings, or dismiss the cases on technicalities like standing or jurisdiction.And the final result? Continued battling it out in the states.
If the court does decide the cases on their merits, Justice Anthony Kennedy, the key vote who has written the court’s two major gay-rights opinions, seemed unwilling to go as far as the challengers to Prop 8 and DOMA want: that gay marriage is a constitutional right. During arguments he said gay marriage advocates were asking the court to go into “uncharted waters,” and he wasn’t sure which metaphor those waters led to: a “wonderful destination” or a “cliff.”
The one thing that apparently held Kennedy back was the lack of social science evidence of the effect of gay marriage on children. In the Prop 8 arguments he noted, “We have five years of information to weigh against 2,000 years of history or more.”
If the justices do what it looks like Kennedy may want them to do—ban the federal government from defining marriage and give that power to individual states—the political future is not necessarily inevitably and nationally victorious for gay marriage advocates. As of now, 41 states have defined marriage as between a man and a woman, and nine have legalized same-sex marriage. Despite polls shifting in favor of same-sex marriage, states remain that will probably maintain traditional marriage laws for the foreseeable future.
The morning of the DOMA arguments, several Supreme Court litigators sat in the court’s cafeteria drinking coffee and parsing the arguments. One had printed out the transcript from the previous day’s arguments, which he thumbed through as his colleagues brought up points. They made educated predictions, but landed ultimately where the most novice Supreme Court observer is: They have no idea what the court will do when it rules on the cases this summer.