California Proposition 8 “Splinters” Supreme Court

Rare 4-1-4 split decision predicted

For the past year, Justice Ruth Bader Ginsberg has been giving speeches on Roe v. Wade indicating that the High Court should have taken a “go slow” approach on the social issue of abortion. Justice Ginsberg noted that the decision ignited a culture war and stopped the democratic process from working to repeal, through political debate and discourse, abortion laws at the state level. Ginsberg noted that if she had it to do all over again she would recommend a “limited ruling” verses the court forcing a decision onto the body politic at large. With the California Prop 8 case, the shadow of Roe v. Wade looms large.

During oral arguments, the High Court quickly divided in the well-known 4 – 4 camp of liberal vs. conservative justices. However, most telling was Justice Anthony Kennedy, a key swing voter on many gay rights issues. In his questioning and comments, Kennedy implied that he was unwilling to assert or could see where there is a constitutional right to same sex marriage. Kennedy noted in both the Prop 8 case and the Defense of Marriage Act case that traditionally states have always regulated marriage, divorce, and child custody laws and regulations.

The justices’ questions were all over the political map. The court was frequently interrupted with outbursts of occasional laughter from the court audience. It seemed like the Court was openly wondering, “God, what have we gotten ourselves into by taking this case?” Court watchers believe that the justices are either looking for a way out or there will be some sort of limited ruling – as predicted in the Ginsberg speeches. One possible outcome (but never predict the court’s possible actions from their questions) is finding the California citizen’s group suing to overturn the 9th Circuit Court ruling striking down Proposition 8 doesn’t have legal standing to bring the law suit before the High Court. The justices could throw out the case which would leave the 9th Circuit ruling in place – and would only pertain to the state of California – Ginsberg’s limited ruling approach. However, Justice Kennedy, who seemed to be trying to bridge the two 4-4 camps noted that the children of gay parents, in his eyes, had legal standing and would seem to have a right to two parents in a secure, legal relationship . . . a noteworthy statement.

The other possible outcome is even more interesting. The court could splinter into a 4-1-4 split, which is what many court pundits are predicting. This also would leave the 9th Circuit ruling in place – again, a limited ruling that would only apply to California. The 4 conservative justices are expected to say there is no constitutional right to same sex marriage – but, states can pass same sex marriage. This approach would leave it to the individual states to resolve the issue of same sex marriage on a state by state basis. The democratic process and debate on the issue would continue for years to come. The 4 liberal justices, however, seem to assert, “Oh yes there is a constitutional right to marry and we have said so in past marriage rulings.” Unfortunately, the fifth vote just doesn’t seem to be there in this case. If it were, all states would have to recognize same sex marriage immediately. This broad approach isn’t likely as Justice Kennedy is critical of any assertion there is a constitutional right for same sex couples to marry.

Justice Kennedy, who is a conservative justice doesn’t want to approach the Proposition 8 case with a ruling as sweeping as Roe v. Wade. It is very likely Kennedy will write his own opinion in an attempt to bridge the two sides. The most telling question asked Wednesday was by Kennedy when he asked, “Do not the children of gay parents have a right to a legally secured relationship with their parents?” It will be interesting to read how the good justice answers his own question.

As the old Chinese proverb goes, “May you live in interesting times.”

June 27th will prove an interesting day in U.S. Supreme Court history no matter what.



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