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Early Indications: SCOTUS to Punt on Gay Marriage?

EXCERPT:

First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing. That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8. Another case with different petitioners (perhaps a government official who did not want to administer a same-sex marriage) could come to the Supreme Court within two to three years, if the Justices were willing to hear it. Second, the Court may dismiss the case because of an inability to reach a majority. Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him. Others on the left may agree. That ruling would leave in place the Ninth Circuit’s decision. The upshot of either scenario is a modest step forward for gay rights advocates, but not a dramatic one.

In other words, the Court could find several avenues to avoid upholding California’s “Prop 8,” while also declining to explicitly strike it down. If the justices venture down either of these paths, then vote to strike down the 1996 Defense of Marriage Act — which many people now anticipate — the issue of gay marriage would fall to the states. Former federal judge Michael McConnell, an esteemed conservative, sketched out this very scenario in the Wall Street Journal last week:

Even though the stage seems set for a momentous ruling by the court, the litigation actually offers the justices a golden opportunity to resolve these cases without setting a precedent either way, and to reaffirm the ideal of democratic, decentralized decision-making...If the court dismisses the Proposition 8 case on standing grounds and strikes DOMA down on federalism grounds, the combined effect would be to reaffirm America’s democratic, decentralized decision-making process without imposing an answer—one way or the other—to the same-sex marriage question. By taking such a path, the court would be spared from imposing a single nationwide definition of marriage as a matter of constitutional law, and from having to rule, for all time, that there is or is not a constitutional right to same-sex marriage—a momentous step that some justices might be reluctant to take. It would leave the issue to the states, at least for the time being. This course might appeal to centrist justices like Anthony Kennedy, John Roberts and Stephen Breyer—and perhaps could even command a unanimous court, which would have a welcome calming influence on the nation’s culture wars. Considerations of these sorts have long been part of the virtue of judicial modesty, too often undervalued by partisans on both sides. In this instance, modesty requires no more than that the justices follow the technicalities of the law.