Prop 8 Ruling: The Real Reasons the Supreme Court Will Legalize Gay Marriage in All 50 States


In my last post, I went into a fair amount of detail about the moral and legal arguments for a 50-state ruling striking down California's Proposition 8, which bans gay marriage in the state. Here's the plain English version of why it's going to happen.

The absurd arguments for more limited rulings:

You hear a lot of people saying, "well, the Court doesn't want to issue a broad ruling." But you can't always get what you want, because they really can't do a limited ruling with any sound legal basis.

If they say that the Prop 8 proponents have standing (more on that below), then it's got to be 50-state.

If the Court says Prop 8 is only unconstitutional because of California's circumstances, that would means it's not okay for a state to allow gay marriage and then take those marriage rights away, but if a state doesn't allow gay marriage in the first place, that's just dandy!

Another ludicrous option, which for some incoherent reason was put forward by the Obama administration's Justice Department, is an 8-state ruling that says if a state makes civil unions legal but doesn't allow gay marriage, then that's against the Constitution ... but it would be OK if a state never granted civil unions or equal legal rights in the first place. Huh?

The "aaah this is too hard, we need to try to find a way out!" rulings:

If they rule on standing, that means the Court says the original funders of the Prop 8 ballot weren't eligible to appeal a lower court's ruling that Prop 8 was unconstitutional. Normally, the California AG or governor would appeal such a ruling, but they both declined to do so. If the Court rules on standing, who exactly could have appealed that ruling?

The Court, I guess, could re-write standing law and say that an elected official would have to have been the one to appeal the lower court's ruling, but that seems unlikely, particularly because Justice Kennedy indicated during oral arguments that he thought the Prop 8 proponents had standing. Such a decision would be a brand new precedent in standing law, and it would seem to go against California's constitution.

Ruling on standing would result in Prop 8 being unconstitutional in California , but it would also be super problematic for future ballot initiative cases.

The other option would be for the Court to issue a rare "we should have never taken this case in the first place! Never mind!" ruling, which would just have the last ruling stand, which BuzzFeed tells me would mean that gay couples could marry in California and "the other western states within the 9th Circuit."

This would be the Court's way of saying "let's just give the states more time to work this out." Or, put another way, "let's just keep allowing voters to decide if discrimination on the basis of sexual orientation is OK or not and see how long it takes Mississippi or Alabama to say that gay girls and boys in those states may be able to get married where they were born one day. And let's just continue to have the children of gay couples be faced with a society that refuses to acknowledge the value and virtue of their parent's relationship."

So obviously, that would be cowardice. There's no "uncharted waters" or potentially dangerous "cliff" here, as Justice Kennedy wondered aloud. We know what we need to know.

As Justice Kennedy said, "There is an immediate legal injury and that's the voice of these children … There's some 40,000 children in California … that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?"

I do not believe Justice Kennedy is stupid. He knows that there are children across the country facing that same immediate legal injury. He knows that none of the other options make any sense.

And that's why, sometime in the next week or so, the Supreme Court is going to issue a 5-4 ruling that finds that denying gay couples the right to marry is unconstitutional across all 50 states.