The Supreme Court heard oral arguments today about Proposition 8 and will hear arguments tomorrow about the Defense of Marriage Act.
Melissa Murray of Boalt Hall
Vikram Amar of UC Davis
After this week's landmark Supreme Court hearings on the constitutionality of Proposition 8 and the Defense of Marriage Act, we asked two of the region's most distinguished legal scholars to weigh in with their opinions. We spoke to Melissa Murray, professor at UC Berkeley School of Law (Boalt Hall) and Vikram Amar, associate dean at UC Davis and a professor of law there.
What will the Court decide?
Melissa Murray: "I am a terrible prognosticator. But if I were a betting man, I would say that this case is going to be about the procedural issue. I could see a narrow decision that allows the Vaughn Walker ruling [to strike down Proposition 8] to stand in California."
Vikram Amar: "That’s like asking who’s going to win March Madness. I wouldn't bet. But if I had to guess, the single most likely scenario is that the Court finds that the sponsors of Proposition 8 have no standing, and that the particular plaintiffs get their marriage licenses. There won't be much of a broader effect."
What will Justice Kennedy, widely presumed to be the critical swing vote, do?
MM: "I actually think Kennedy is not the one to watch. If his reactions yesterday are any indicator, he’s concerned with procedure, and wants to avoid substance. To me, his questions about the social science of gay marriage are things you would say in 1983. Even though gay families have been around for a long time now, he seems to see this as a new question. To me that says he’s not ready to set out the substance just yet."
VA: "If I knew that, I could have easily answered the first question. He’ll be in the bloc that controls the outcome."
Will another Justice surprise us?
MM: "Though she's on the liberal wing, Justice Ginsburg is a conservative in understanding the Court’s institutional role— she doesn’t want to get out ahead of public opinion. She gave a lecture in the 90's criticizing Roe v. Wade, not because she opposes abortion, but because she thought that the Court's intervention prompted the backlash. I think she has the authority of a long career and is likely to be persuasive. She is the one to watch as much as Kennedy."
VA: "Some of the more liberal justices might not yet be ready to recognize a national right. I could see Breyer or Kagan embracing the [idea that] the Court should move cautiously."
Just how much can we predict on the basis of the oral arguments?
MM: "When you have a polarized court, orals tell you which group wanted [to hear the case]. It seems clear it was the more conservative justices. They seemed firm in their conviction that Proposition 8 was constitutional."
VA: "Not really predictive. If you go back to the Obamacare hearing, the last thing in orals that Justice Kennedy said was that these things are all matters of degree. Then he joined a decision that rejected that idea. Meanwhile, Chief Justice Roberts gave no indication at all of the ruling that he would go on to issue."
What's going to happen to DOMA?
MM: "Striking down DOMA allows them to say they were on the right side. If you think about the two cases in tandem, then I see them striking down DOMA and issuing a limited ruling on marriage."
VA: "They could invalidate DOMA, but leave intact all the state laws that prohibit same sex marriage. That would be a nominal victory for state rights, even while it would be a victory for liberals."
Would a sweeping ruling provoke a right-wing backlash the way Roe did?
MM: "A limited ruling on the marriage case [avoids] the shadow of Roe vs. Wade. The Court is attentive to pubic opinion."
VA: "They’ll be a backlash, no question. It won’t last as long as Roe. Even those states in which the attitude on same sex marriage is negative now, in ten or fifteen years it won't be. What matters is what teenagers in Alabama think about same sex marriage. My guess is that the cleaving line in Roe is political and geographic, whereas this cleavage is demographic and age-related."
When all the dust finally settles, will same-sex couples in the United State be allowed to marry?
MM: "I’m a terrible prognosticator, but it seems obvious to me that same sex marriage is inevitable. It was from Lawrence v. Texas in 2003, when the Court struck down laws that prohibited sodomy. Once you say that this behavior is no longer suitable to be regulated by criminal law, it seems that marriage is inevitable. Historically, the state either regulates sex through criminal law or through family law."
VA: "I am pretty confident that same sex couples will be able to marry in most states, and likely in all states. That depends not only on this case, but on the next few Presidential elections. Conservatives could win a few Presidential elections and change the court, even as country moves liberally on the issue."