As predicted, Prop. 8 will fall; what I didn't predict was that the decision, while likely to include many qualifying concurrences, will be unanimous.
In an earlier column for this publication ("Faith, Reason, and Prop. 8 at the U.S. Supreme Court
") and a subsequent one on the Huffington Post
("Prediction: 6-3 DOMA and Prop. 8 Both Fall
"), I speculated that if the merits were reached, Chief Justice John Roberts in a 6-3 decision would find a way to be in the majority, holding the exclusion of same-sex couples from marriage to be as irrational as Justice Anthony Kennedy found the singling out of gay and lesbian persons for lesser civil rights protection in the earlier decision in Romer v. Evans. Keeping with his Obamacare creativity to have the Court speak more as an institution and with fewer 5-4 partisan voices, Roberts could legitimately join an outcome agreeing this to be Romer-type irrationality.
The effect of that scenario would be recognition of same-sex marriage premised exclusively on California considerations, but thoughtfully limited so as not to transgress religious freedom.
Yet the question of whether the proponents of the legislation had sufficient adversity and injury (the California Supreme Court ruled that they did) that was good enough to satisfy the Article III conception of standing, opened an even wider basis for institutional consensus. Both Justice Kennedy and the Chief Justice seemed unsatisfied with whether the state court assessment was fully vetted in light of the separation of powers considerations of the federal Constitution.
Quite frankly, no justice seemed entirely satisfied that the separation of powers concerns had been fully explored. It's never a good sign when an advocate begins oral argument and is immediately asked, in essence, "what are you doing here?" It's an even worse sign when, as the argument draws to a close, words equivalent to "maybe be we should have never granted [certiorari] in this case." The Court's demonstrated lack of consensus on this threshold matter of jurisdiction will likely lead to a per curiam dismissal of a writ improvidently granted."
So who has standing to bring the case?
The U.S. Solicitor General argued that the proponents have at best a generalized grievance and that they are not agents of the state with the same oath-determined fiduciary duty of representation. It is not clear that Justices Antonin Scalia and Samuel Alito agree, and Justice Alito teased the SG that on the following day he was prepared to argue that with respect to the Defense of Marriage Act (DOMA), the fact that President Obama has resolved not to defend the law did not deprive the Court of jurisdiction when Congress was brought into the fray to defend its own legislative handiwork. But insofar as determining who can bring a suit -- the heart of the judiciary's function -- look for considerable time to be focused on what happens when officers charged with enforcement duties decide they personally dislike the law and punt enforcement to someone else. Full disclosure: I joined a brief of former White House and Office of Legal Ccounsel that President Obama did have authority to decline to defend so long as the president through the SG arranged for those with a genuine interest in the law's application (the legislature) to pick up the slack.
We shall see. The Chief Justice suggested an even surer course -- that if the proponents of an initiative or a law lack standing, a government official who doesn't want to officiate a same-sex marriage could legitimately raise her claim to be duty-bound to enforce Prop. 8 in court.
Curiously, in the Prop. 8 litigation, it has been rather widely overlooked that one California county -- Imperial -- sought to intervene before Judge Vaughn Walker on precisely the grounds suggested by the Chief Justice. I know because my daughter, Katherine Kmiec Turner drafted and filed the motion and brief seeking to intervene precisely on those grounds, but to no avail.
Does it matter?
It might; indeed, and it arguably should, such that the writ not only should be found to have been improvidently granted, but fortunately for those who are interested in getting the Court's view of the merits, vacating the court of appeals and trial decisions so that those arguments could be presented anew in a truly adversarial setting that would, by virtue of its delayed timing, take into account the fact of increased legislative approval of the proposition that marriage is indeed a fundamental interest not only because it often secures procreation, but also because it embodies the best context we have as human beings to demonstrate that we love someone else more than ourselves.
Douglas W. Kmiec, former U.S. Ambassador to Malta, is the Caruso Family Chair in Constitutional Law and Human Rights at Pepperdine law school.