March 26, 2013 1:17PM

Oral Argument in Prop 8 Case: Kennedy Is Key but Technical/​Non‐​Decision Likely

To the extent oral argument is a predictor of anything — recall how set the Supreme Court was to strike down Obamacare a year ago — the most likely outcome in Hollingsworth v. Perry is a non‐​decision of some sort. Only three justices (Scalia, Kennedy, Alito) seemed willing to find that the Prop 8 proponents had standing to bring the case to the Court and one of those (Kennedy) didn’t seem comfortable either striking down or upholding California ban on gay marriage. 

Indeed, the main thing this argument did was to bring back questions of why the Court took the case in the first place. Unlike the Defense of Marriage Act case of United States v. Windsor, which will be argued tomorrow, the lower court’s ruling in Perry affected only California’s peculiar circumstances: granting gay marriage (by judicial opinion), then taking it away (by popular vote), and otherwise granting same‐​sex couples all the rights and benefits of marriage except the word. The Supreme Court tends to use any excuse available not to hear controversial cases, and this one was chock full of them (as even Ted Olson and David Boies argued in their opposition to the petition for certiorari).

But now we’re left with two most likely scenarios: (1) the “liberal” justices potentially joining Chief Justice Roberts on a ruling that the petitioners lack standing, which would probably vacate the Ninth Circuit ruling but leave the district court’s ruling against Prop 8 in place; or (2) no majority because Justice Kennedy (and perhaps others) would prefer to dismiss the case as improvidently granted (a “DIG” in insider terms), which would leave the Ninth Circuit’s ruling in place — so Prop 8 would also remain struck down, albeit on narrower grounds than in the first scenario.

Or we could have one other intriguing non‐​decision scenario: The Court sets the case for further briefing and re‐​argument on any number of potential issues — the factual evidence regarding asserted state interests (e.g., outcomes for children raised by gay couples, the effect of allowing gay marriage on marriage and divorce rates more broadly), the historical meaning of equal protection (see Cato’s brief), or some other real or pretextual reason for kicking this can down the road. Because if there was agreement on one point this morning — other than that the U.S. government’s argument that states’ only options were granting same‐​sex marriage or not giving gay couples any rights at all (the logical consequence of the Ninth Circuit’s ruling) — it was that gay marriage is a very new phenomenon that at present takes the Court into “uncharted waters” (to quote Justice Kennedy). And so the justices may want to let the social science (and public opinion) develop for a while.

But, of course, these concerns — as well as the procedural complications — were present when the Court took the case in December, so why take it in the first place? It could well be that either the “conservative” or “liberal” justices wanted to force Justice Kennedy’s hand. Well, it was clear today that the gentleman’s not for forcing.

For further analysis, which I’m gratified to see is substantially similar,see Tom Goldstein and Lyle Denniston at SCOTUSblog.