On Friday, the Supreme Court of the United States agreed to hear two of the biggest cases in its history concerning gay rights. The cases are at both the federal and state level, and will establish a nation-wide precedent for the constitutionality of same-sex marriage laws.
Or, not. You see, there was another development that was hidden between the lines of this event that gives a very strong clue as to how the court will rule. Or, more to the point, how the Chief Justice will rule.
Let's get the known commodities out of the way. Justices Scalia, Thomas, and Alito --- three-quarters of what I refer to as "The Fascist Four" --- will find any way (with or without precedent, never mind constitutional grounds, about which they couldn't care less) to strike down any laws permitting same-sex marriage. Their votes were bought and paid for a long, long time ago. So that part of this equation is not a mystery.
Justice Kennedy cherishes his position as the "swing vote" on the Court, but he is too much of a dyed-in-the-wool traditionalist (pronounced, 'bigoted old white man') to do anything but side with the Fascists in these two cases. So there isn't much mystery there either. Four votes against.
We can also assume that the liberal wing of the court --- now consisting of four Justices: Breyer, Ginsburg, Sotomayor, and Kagan --- will prefer to uphold any laws supporting same-sex marriage. It will depend on the circumstances as to how they would choose to do that. And that's where the intrigue begins.
When the Supreme Court agreed to hear these two cases, it also asked for the litigants to address the issue of standing. This has all the ear-marks of a request from Chief Justice John Roberts. It signals his intention to dismiss the writ of certiorari based on lack of standing, and his fervent desire to avoid the question of gay marriage altogether.
For those of you who don't understand what I'm saying, you can stop reading. Either that, or go look up the details and then hop back here.
When President Bush nominated Roberts, it was to fill an Associate Justice opening. But in the intervening months prior to Roberts' confirmation by the Senate, Chief Justice William Rehnquist passed away, leaving the Chief Justice's seat vacant. Bush then decided to amend his nomination of Roberts to the Chief Justice slot. In doing this, he made a critical mistake.
You see, John Roberts is acutely aware that this is "The Roberts Court," and will be for a period that could potentially span as much as 30 years or more. That would put him in the same league as such Supreme Court legends as the afore-mentioned Rehnquist, Warren Burger, Earl Warren, and John Marshall. To say Roberts is a student of Supreme Court history is like saying Tony Bennett can carry a tune. For that reason, Roberts is extremely sensitive to what he knows will be landmark decisions, and how the outcome of those cases will be viewed by history.
Roberts is not an idiot. He can see that in 50 years the issue of gay marriage will be what the issue of interracial marriage is today: no big deal. He can tell that if The Roberts Court rules against gay marriage, it will be labeled as a court of bigots, barely above the misguided decisions upholding segregation. Regardless of his what personal opinions on the matter are, or those of the Conservative groups that were influential in putting him in his current position, he cares about his place in history far, far more --- and he won't do anything to jeopardize that reputation.
Hence, the request for briefs on the matter of standing.
See, in the federal case involving DOMA, that law was passed under the Bush administration. It was challenged, and the courts ruled against it. The Bush Justice Department appealed, and lost, and appealed to SCOTUS. But then Obama was elected, and the new regime at the Justice Department --- under direction from the White House --- dropped the appeal. Oh, but that didn't stop the Republican bigots in the House of Representatives, who formed a committee to oversee the pursuit of the appeal.
But the question is, can they do that? Is it the business of any group outside the Attorney General's office to appeal the lower court's ruling? That's what the Supreme Court has asked the litigants to address, and that is the loophole that Chief Justice Roberts was hoping to find.
The Court will hear the case, including the arguments addressing standing, and then retire to chambers. There will be a lot of internal hue and cry over the ensuing months, but when the dust settles, here is what will happen.
5-4 decision to dismiss, Roberts joining an opinion written by one member of the liberal wing, on the basis that the House bigots committee does not have standing. Scalia will pen a scathing, most likely record-setting (even for him) dissent, joined by the remainder of the Court, using every obscure insult short of expletive but very demonstratively calling Roberts a coward.
This is what Roberts wants out of this: to avoid the issue entirely. This is the perfect solution for him: he doesn't have to vote against the tide of public opinion, he has an excuse to explain away his vote to the people who paid good money to put him on the Court, and The Roberts Court doesn't go down in history as the Court that tried to establish Constitutional grounds for abject bigotry. Roberts has done this on several occasions with prominent cases, and he appears to be getting very crafty about isolating and exploiting such situations to help protect his place in history.
Incidentally, the second case involves the state of California and Prop 8, where a close referendum vote overturned an existing law legalizing same-sex marriage. Prop 8 was overturned by the courts, and the state Attorney General refused to pursue an appeal. But, similar to the DOMA case, a group of anti-gay-marriage supporters formed a legal defense fund to pursue the appeal. Nearly the same situation as the DOMA case, and it will have precisely the same outcome.
So does this mean that the fight over gay marriage will be over? Not even a little bit. All these rulings will do is delay inevitable action. Not ruling on the merits means 1) the lower courts' rulings stand in these cases, 2) there is no precedent established in either case, and 3) lower courts remain free to essentially rule however they want. It's a little more nuanced than that, but that's the crux of it.
There will eventually be more gay marriage laws, more court cases challenging those laws, and more appeals of those rulings. Some time down the road one of those will get to the SCOTUS level. Though I suspect Chief Justice Roberts would prefer that not happen until somebody else is sitting in his chair.
