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U of M law professor says justices may avoid taking stand on gay marriage

supreme court sketch
REUTERS
"You might have a majority of the court just willing to say we’re not going to deal with this issue. We’re not going to decide right now the questions of same sex marriage."

Dale Carpenter, professor of civil rights and civil liberties law at the University of Minnesota law school, attended today’s oral arguments at the U.S. Supreme Court challenging California’s Prop. 8, which recognizes as valid only marriages between a man and a woman. 

Carpenter has studied and written about the first major Supreme Court decision on gay rights, as the author of "Flagrant Conduct,"  the story of Lawrence v. Texas, the case that banned laws against sodomy. He is a member of Republicans United for Freedom, a group advocating for gay marriage in Minnesota.

Although lawyers for both sides said after the arguments that the justices did not reveal much about how they would decide the case, Carpenter said he believes that, based on the arguments he heard today, the high court may avoid deciding the issue on its merits based on the legal principle of  “standing.” That, he said, would buy the court more time – which, he added, may be a victory for gay marriage advocates.

MinnPost: How did you get a ticket for today’s arguments?

Dale Carpenter: I got there at 3:15 this morning. I waited in line for six hours in the cold. I got there early enough so I just barely got in. I was in the lawyers’ line. Lawyers get kind of preferential seating if you are a member of the Supreme Court bar. The public line was much longer and much harder to get into.

MP: What were your impressions of the arguments?

DC: I thought the justices were struggling with a couple of very important questions.  One was an issue that only a lawyer could love, and that is whether the Prop. 8 proponents have standing. The question is whether they even have the power to bring their lawsuit. It looked to me like Chief Justice Roberts had serious questions about their power to bring this lawsuit because they had not suffered any injury. The court doesn’t like it when parties just come in and say, well, we don’t like this law, so we want it rescinded. 

If you put him together with four other justices, you might have a majority of the court just willing to say we’re not going to deal with this issue. We’re not going to decide right now the questions of same-sex marriage.

MP: Where would that leave the law in California then?

DC: There are a couple of possibilities. One of them is that it would leave in place the decision of the judge in San Francisco to strike down Prop. 8, but his decision might only apply to the particular parties that filed the lawsuit, meaning that those four or five couples could get married but there’s not a right for anybody else to get married unless they bring their own lawsuit.

carpenter portrait
MinnPost photo by James Nord
Dale Carpenter testifying on gay marriage before the Minnesota Senate Judiciary Committee earlier this month.

It might also mean that his ruling applies to the northern district of California, which is the district in which he sat. In other words, this issue could, conceivably, end up again in front of the Supreme Court in another probably two to three years.

MP: How likely is it that the justices will say they don’t want to hear this case? 

DC: I think, based on what I heard in the oral argument today, a majority of the justices were uncomfortable declaring a right to gay marriage, but they were also uncomfortable ruling that there’s not a right to gay marriage. So I think this is a way they can kind of kick the can down the road for a while. It buys them a little time. It lets the dust settle a little bit. 

MP: Was there any indication of another direction the case could go?

DC: I think the next most likely outcome would be, “We don’t think there’s a right to same sex marriage and we’re not going to do that and just reject the claim.” That’s always a real possibility.

I think it has to be cause for some concern among same sex-marriage advocates that Justice [Anthony] Kennedy, who is perceived to be a swing vote on the court, seemed skeptical. He seemed to think that it’s too early. We don’t have enough evidence yet of the effect of recognition, we need more conclusive evidence. That is what I picked up from the tone of his questions.

MP: Was there anything leading or telling from any of the other justices?

DC: I think it was very interesting that Chief Justice Roberts, especially, seemed to be willing to throw the case on standing grounds. At least, he didn’t want to jump in to the issue right away. I thought that was the most hopeful sign of the day, quite frankly.

In fact, he seemed more willing than Justice Kennedy to throw the case out on standing grounds. So you could have the result like you had in the health care case [challenges to the Affordable Care Act] where Justice Roberts sides with the four more liberal justices.

MP: How effective were the proponent of Proposition 8 in their arguments?

DC: I think they were effective in the sense that they sowed the seeds of doubt. When they were asked, what harm will it do to recognize these couples, they didn’t really have an answer to that but they said well, “We don’t know what it will do.” That seemed enough to get at least Justice Kennedy concerned.  

The advocate in the case was not effective in showing what the harm would be. In fact, I thought he made major concession today when he was asked by Justice [Sonia] Sotomayor, “Could you think of any other way that government could discriminate against gays and lesbians that would be rational besides marriage?” And he said,” I can’t think of one.”

I thought that was a very significant concession because it means that even the staunch defender of marriage between a man and a woman can’t think of any other example in which the government ought to be able to discriminate against gay people. It’s the only one left, according to him.

MP: What were the strengths and weaknesses of the challengers to Prop. 8?

DC: Ted Olson [lead attorney for the challenge to Prop. 8] is a very effective, authoritative advocate. The justices know him on a personal level. He has an ease in front of the justices that lent his argument a degree of credibility that it might not have had otherwise. 

If I had a criticism of him, it was that he did not seem to have an answer to what seemed to me was the obvious question from Justice [Antonin] Scalia, which was: “When did same-sex marriage become a constitutional right?” He wasn’t really prepared with an answer for that.   

MP: How would you have answered that question?

DC: I would have said, it became unconstitutional when we passed the 14th Amendment that declared that every person is entitled to the equal protection of the laws, but that it’s taken us a lot of years to figure that out. Just like it took us a lot of years to figure out that black people shouldn’t be discriminated against in schools and interracial marriages shouldn’t be banned and women shouldn’t be banned from being lawyers, and lots of other stuff. It was unconstitutional the day we committed ourselves to equality, but it’s taken a while to figure out what that means.

MP: Was there anything else that impressed you in a negative or positive sense?

DC: Something else that stuck out: Some people thought maybe the court would kind of compromise between no gay marriage and 50 state gay marriage and they’ll just settle on ordering nine states in the country to have gay marriage. 

I think the court just shut the door on those kinds of compromises today. None of the justices seemed very impressed by that.

MP: Will you be present for the arguments tomorrow for and against the Defense of Marriage Act?

DC: I will be there for that.

MP: Does the ticket you procured today give you a seat for tomorrow’s proceedings as well?

DC: No, I’m going to be getting in line again at 3:15 and be ready to go.

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Comments (3)

Background research?

"Strange Justice" is the title of an NY Times review of Prof. Carpenter's book, "Flagrant Conduct," written by David Oshinsky.

Research

Thanks Aaron. I knew that having interviewed Dale many times on the book. That's what you get with writing on deadline. 

Standing

I, too, suspect that this case might be thrown out on standing, but that they might decide on DOMA. It would allow some sort of decision to be made without indicating that marriage discrimination is unconstitutional. Rather, by killing DOMA, they find that the Federal Government must recognize marriage as defined by a state in each state. Messy, but less risky than a precedential decision on Prop. 8.