TAKING THE PROP 8 CASE MUST HAVE SEEMED LIKE A GOOD IDEA AT THE TIME

The Supreme Court accepted two gay marriage cases a month after the 2012 election. Obviously, after President Obama was returned to office, the majority's hope was that these cases could be decided with as conservative a Court as possible, before the president could add any liberal justices. But I suspect that the politics of gay marriage are moving so fast, and in such a non-conservative direction, that Chief Justice Roberts doesn't see any good choices, at least in the Proposition 8 case.

The state of California refused to act as a plaintiff, so the plaintiffs are activists who fought for the state's ban on gay marriage. They seem to have had difficulty persuading the justices today that they themselves are harmed by gay marriage. And so, according to SCOTUSblog's Tom Goldstein, Roberts seemed to share the opinion of the Court's liberal members that the plaintiffs have no standing to sue, which would give the Court an opening to kick this can down the road:

Several Justices seriously doubt whether the petitioners defending Proposition 8 have "standing" to appeal the district court ruling invalidating the measure. These likely include not only more liberal members but also the Chief Justice. If standing is lacking, the Court would vacate the Ninth Circuit's decision.

... 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.

Another possibility is that there won't be a five-vote majority for either side, because Anthony Kennedy can't make up his mind:

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.

... 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.

Did Roberts and his conservative confreres formerly hope to uphold the constitutionality of state bans on gay marriage, whereas now Roberts thinks that's potentially harmful to the GOP? Right now, nobody in the GOP establishment is sure what the shrewd play is if the party wants to win over new voters in the future without alienating old voters.

The Court's liberals don't seem to be itching to use the Prop 8 case as a way of declaring a constitutional right to gay marriage in all 50 states -- clearly they don't have a majority, and maybe they think they will in the not-too-distant future, but they may also agree with what David Cole wrote in New York Times op-ed today: that such a ruling would inspire a huge right-wing backlash. (I agree with that -- do you really think legislators and local officials in, say, Mississippi are going to take kindly to being compelled to allow gay marriage? And I wouldn't limit that to Mississippi -- I'd include Rust Belt states that still have lots of aging cultural conservatives, such as Michigan, Ohio, and Pennsylvania. I don't want the 2014 midterms playing out under that cloud.)

I'm thinking that no one wants to touch this right now. And I don't think it's bad that this will play out in the states (especially now that the good guys are winning more and more).

****

OR AS THINK PROGRESS PUT IT: "The Justices Are Not Ready To Bring Marriage Equality To Alabama, And They Want Prop 8 To Go Away."