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Our View: High court could sidestep marriage decision

Dismissal of Proposition 8 case without ruling is an option

Published: March 27, 2013 4:00 AM

The Supreme Court could

be poised to make a historic decision if it overturns California's ban on same-sex marriage and affirms a legal precedent that would apply nationwide.

It also could rule in favor of Proposition 8, the voter initiative that banned same-sex marriages, or it could opt for a third option: Dismissing the case on the grounds that gay marriage opponents have no legal standing to defend the ban in court. That would sustain a lower court ruling in favor of same-sex marriage, allowing gay unions to resume in California, but without setting a precedent anywhere else.

As the court heard arguments in the case Tuesday, several of its members, including Justice Anthony Kennedy, a potential swing vote, raised the possibility of dismissing the case without ruling on it. The high court could dodge a landmark decision, at least for the time being, without, as Kennedy put it, wading into "uncharted waters" on gay marriage.

Same-sex couples in California briefly had the legal right to marry before voters adopted a constitutional amendment in 2008 that defined marriage as the union of a man and a woman. Thirty states, including Ohio, ban same-sex marriage while nine states and the District of Columbia have legalized it.

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Those arguing in defense of same-sex marriage cast the issue before the high court in terms of equal rights. Opponents contend that the institution of marriage must be limited to two partners of different gender. Regardless of how the court rules, many will be dissatisfied with the outcome.

Theodore Olson, the former Bush administration solicitor general representing two same-sex couples in the California case, contended in his argument before the high court that justices had faced a similar situation in 1967 when the court struck down bans on interracial marriage in 16 states.

Interracial marriage was still an emotional flashpoint for many when that ruling was issued. The passing of nearly 50 years has seen a change in attitudes toward it as interracial unions have become increasingly commonplace.

Perhaps the same change will occur with same-sex marriages. The tide is turning at the ballot box. Last fall, voters in Maine, Maryland and Washington became the first in the nation to approve gay marriages, while those in Minnesota turned down a ban on same-sex unions.

The high court could acknowledge this by sidestepping a ruling in the California case, opting to let the issue evolve on its own. That may not be the ideal outcome for either side, but it's an alternative that a divided court may choose.

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TaggR Mar 27, 2013 8:55 PM

"Your customary resort to ad hominem argument belies your inability to reason beyond fallacy" LOL, other words, stop being real Trawl.

Ian_Maserb Mar 27, 2013 3:16 PM

Trawl: Your customary resort to ad hominem argument belies your inability to reason beyond fallacy.

Ian_Maserb Mar 27, 2013 3:12 PM

The liberal's definition is "the less you contribute the more you should get". What happens when the money runs out? Greece? Cyprus?

Ian_Maserb Mar 27, 2013 3:07 PM


I believe that a Federal District court has ruled proposition 8 unconstitutional, so the SCOTUS would be hearing that in its appellate capacity. It could overturn the lower court's decision and extricate the Federal Government from issues properly belonging to the states.

trawl Mar 27, 2013 1:21 PM

@ TaggR, you wrote: "(Conservatives) fail to understand reality unless it affects (them) personally" ..... Thats because empathy takes a little mental effort for someone to imagine themselves in someone else's situation. But, you know, Empathy is a weakness, a "girly" thing. Who needs it?

little_r_republican Mar 27, 2013 12:16 PM

"Scalia asks Ted Olson: When exactly did "equal protection" of the laws become applicable to the laws of the states or God's laws in those religious texts; THEN on the books at the time of the 14th Amendment's ratification?"

TaggR Mar 27, 2013 9:09 AM

For all you loud and proud conservative types, the issue is equality. Focus on the issue, this why your politics is failing in America. You fail to understand reality unless it affects you personally.

TaggR Mar 27, 2013 8:53 AM

"The argument that "equality" is the issue is just an argument to change the federal dictate that causes the inequality." Please explain billy?

little_r_republican Mar 27, 2013 8:26 AM

The argument that "equality" is the issue is just an argument to change the federal dictate that causes the inequality. Somme argue ss benefits to spouses...that is a good argument to git rid of ss and let people keep their own money and give it to whoever they desire. Same with federal FIT deductions...go to a fair tax.

little_r_republican Mar 27, 2013 8:21 AM

SCOTUS should stay out of this issue. There is nothing in Article III of the Constitution giving SCOTUS authority over a civil issue within one state. Prop 8 is entirely within California.

TaggR Mar 27, 2013 7:50 AM

Ian_Maserb the cost to the taxpayer is not the issue. The issue is equality. Do you understand the meaning of equality? Are you against equality? Straight couples get married all the time just so they can receive the benefits a married couple receives. I have yet to see an estimate of the cost to us taxpayers. Maybe we should just stop marriage all together? I know it's hard for some of you, but stop being a hypocrite!

Ian_Maserb Mar 27, 2013 5:19 AM

Isn't it amazing how few mention the 1000+ Federal benefits up for grabs here. I have yet to see an estimate of the cost to the taxpayer.

Ian_Maserb Mar 27, 2013 5:14 AM

What will the SCOTUS do? Easy. Just pick the decision that will cost the taxpayer the most.