Ruth Institute Blog

Dale Carpenter is a very sensible gay man, a law professor at the University of Minnesota, and an advocate of same sex marriage.  He offers this analysis of the likely outcome of the Prop 8 trial.  For my readers who are not regular court watchers, or trained in the law: Prof Carpenter’s analysis highlights the high stakes of this case.  Much more that just Prop 8 is at stake in this case.  If the courts discover that dual gender marriage violates the US Constitution, we will have same sex marriage everywhere in America.

As a legal strategy, the Prop 8 litigation was always a high-stakes bet. The bet was that there were either five votes on the Supreme Court to strike down Prop 8 or that, by the time the case works its way up, there would be five votes to do so. … A successful outcome for David Boies and Ted Olson means a successful outcome in the Supreme Court — not merely a win in Judge Walker’s trial court or even a win in the Ninth Circuit Court of Appeals.

Like many others, I was dubious from the beginning about this bet. I don’t see how you get to a 5-4 majority on the current Court to strike down Prop 8. The hope has been that Justice Kennedy would join the Court’s liberal wing in such a decision. I’m not completely convinced that even this liberal wing — Justices Stevens, Breyer, Ginsburg, and Sotomayor — will take on the marriage laws of 45 states….  If nothing else, the recent decision he joined to prohibit the broadcast of the Prop 8 trial — a decision that diminished whatever political salience it might have had — suggests that Kennedy believes the beleaguered group needing the extraordinary protection of courts is the supporters of Prop 8.

Now two factors have made a favorable outcome in the Supreme Court even less likely than when the litigation was filed last year. The first is the election of Scott Brown to the Senate from Massachusetts. This denies the Democrats a filibuster-proof majority. The second is the likely retirement this summer of the most stalwart of the Court’s liberals, Justice Stevens.

The possibility of a filibuster of the president’s nominee to replace Stevens will likely have a moderating effect on Obama’s choice, which means the replacement will be somewhat less likely to vote to strike down Prop 8. With Republican gains in the Senate this fall, any hopes for strongly liberal nominees to replace conservatives before the 2012 election seem even more vain.

All of this is speculation. Maybe Kennedy is on board. Maybe Justice Stevens won’t retire. Maybe his replacement, or a replacement for a conservative in the next couple of years, will surprise us. Earl Warren the nominee wasn’t Earl Warren the Chief Justice. Maybe the Republicans won’t mind letting one strong liberal be replaced by another and will let it go just as the fall election approaches. Maybe lions will lie down with lambs.

But as of now, the Prop 8 litigation bet just went from bad to worse.