Tom Goldstein at SCOTUSblog has a fascinating piece on how today’s oral arguments went in the Prop 8 case.
The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy. For the more liberal members of the Court, there was no clarity on how broadly they would rule.
But Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail. He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new. He also noted the doubts about the petitioners’ standing. So his suggestion was that the case should be dismissed.
And the bottom line:
The upshot of either scenario is a modest step forward for gay rights advocates, but not a dramatic one. The Court would stay its hand for some time for society to develop its views further. But combined with a potentially significant ruling in the DOMA case being argued tomorrow, the Term will likely nonetheless end up as very significant to gay rights.
Many right, left and center argue that the state should simply get out of the marriage business, create civil unions accessible for everyone, and leave the marriage rite to churches. It strikes me that that may be the least likely outcome of all this. The most likely is a muddle in the short term leading to full legalization either via SCOTUS or later in either Congress or at the state level.
Government seldom devolves power unless forced to. But individuals and local groups make choices to abandon some activity as the cost gets out of reach for them.
The most likely outcome at this point is that same-sex marriage is ratified. That’s not the end of the story, though. No issue of this magnitude can pass without having many unintended consequences. Roe v Wade really didn’t settle abortion as an issue; arguably that ruling made things worse. Ratifying same-sex marriage will likely lead to discrimination lawsuits against pastors and churches that resist performing ceremonies for same-sex couples, leading to bankruptcies, and eventually, to churches, not the state, vacating marriage. The risk of lawsuits and being bankrupted by court costs will be too great. So many churches that adhere to the current definition of marriage will simply no longer marry anyone, to avoid being taken to court and sued for discrimination.
Americans attend church less and less these days, and many won’t care that many churches abandon hosting and performing weddings. Many already don’t care that the religious conscience has been violated via ObamaCare’s abortifacient mandate. Many will even cheer the continued retreat of faith from relevance in public life.
More: But be clear-eyed, and careful what you’re actually cheering on.