http://www.businessweek.com/articles/2013-03-26/gay-marriage-the-3-big-questions-from-the-high-court

Law

Gay Marriage: Three Key Questions From the High Court


Justice Kennedy seems to hold the balance on gay marriage

Photograph by Win McNamee/Getty Images

Justice Kennedy seems to hold the balance on gay marriage

Big case at the Supreme Court today.

Here are the three most important questions members of the high court asked as they mulled what to do about Proposition 8, California’s ban on gay marriage.

1. “I just wonder if the case was properly granted.” —Justice Anthony Kennedy

Now you tell us!

Kennedy, by all appearances the swing vote among the nine justices, suggested with this musing that the Supremes could decline altogether to say whether the Constitution gives gays the right to marry. A decision not to decide likely would allow a lower-court ruling to stand, permitting gay marriage to resume in California without affecting other states. Kennedy twice asked whether the most prudent course would be, in effect, to punt.

Why might the justices conclude that they goofed in accepting the Prop. 8 case for review? Well, for one thing, the state of California itself has filed a brief supporting the challengers to its own law. The appeal is being pushed by a coalition of Californians who support Prop. 8 and have stepped into the state’s shoes to defend the provision. The Supreme Court may decide that these foes of gay marriage lack “standing,” as they have suffered no distinct harm and are not accountable to the state or its residents at large.

2. “The voice of those children is important in this case, don’t you think?” —Justice Kennedy

The inquisitive Kennedy referred to the children of same-sex couples in California. He strongly suggested that, unlike the defenders of Prop. 8 and traditional conceptions of marriage, these kids do suffer “immediate legal injury” when their two moms or two dads are not allowed to wed officially. “They want their parents to have full recognition and full status,” Kennedy said, implying that the children in question have promising futures themselves as constitutional litigators.

If Kennedy and four colleagues were swayed by the voice of the children, they could announce a constitutional right to gay marriage nationwide. They could also choose a middle ground: a narrower ruling that created a right to gay marriage in California and perhaps some other states.

3. Was not the appellate-court decision in the California case “very odd”? —Justice Kennedy

The U.S. Court of Appeals for the Ninth Circuit upheld a 2010 trial court decision striking down Prop. 8. But the appellate court did so based on convoluted reasoning. The appeals court said that since California’s top state court earlier had ruled  that there is a right for gays to marry, the state acted improperly when it removed that right via Prop. 8. If the U.S. Supreme Court were to embrace this reasoning, gays in California could marry, but their counterparts in other states that continue to ban homosexual unions would have to fight it out in their legislatures and court systems. Sounds like a mess. When democracy intersects with constitutional jurisprudence, a mess is often what you get.

***

It will not have escaped the attention of careful readers that all three big questions from today’s oral arguments came from Justice Kennedy. Apologies to the other Supremes, some of whom posed intriguing inquiries, too.

But let’s get serious. The back-and-forth at the high court revealed a bench neatly divided, 4-to-4, liberals vs. conservatives, with Justice Kennedy holding the decision in his hands. When the Supreme Court rules, probably by late June, it’s a safe bet that Kennedy’s answers will determine the outcome.

Barrett_190
Barrett is an assistant managing editor and senior writer at Bloomberg Businessweek. His new book, Law of the Jungle, tells the story of the Chevron oil pollution case in Ecuador.

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