In the rush to interpret and to prophecy, we risk losing track of what the court actually said

The Supreme Court’s Decisions 

Raise More Questions Than Answers

by GERARD V. BRADLEY

The results of the two marriage cases decided June 26 are already shrouded in the mists of history. What I mean is: The struggle over marriage in our society neither began nor will end with these decisions, and those carrying on the fight are arguing already about what these decisions mean for the future. This concern about portents is natural and fair enough. But in the rush to interpret and to prophecy, we risk losing track of what the court actually said.


Let’s start there.

One case is Perry v. Hollingsworth. It is almost universally referred to as the “Prop. 8” case, so named for the California ballot initiative that limited marriage to the union of a man and a woman and which passed after a court there forced marriage to be open to same-sex couples. Prop. 8 thus returned California law to the status quo ante. It was challenged in the courts by same-sex couples who wished to legally marry (as some had during the brief window of opportunity closed by Prop. 8).

After what was truly (no spin here) a bizarre trial, Judge Vaughn Walker held that Proposition 8 was inconsistent with the Constitution’s guarantee of equality for “gay” people, a holding which the local appeals court affirmed and which was then taken to the Supreme Court.

The Supreme Court resolved Perry on procedural grounds. Because the state of California declined to defend Prop. 8 in court (much as the Obama administration declined to defend the federal Defense of Marriage Act in the other marriage case decided on June 26), the lower court allowed the backers of Prop. 8 to appear as defendants. These folks were not public officials. The Supreme Court ruled — plausibly, if not rightly — that they lacked the necessary “standing,” which is a legal term basically about the party’s connection to the lawsuit. The high court effectively nullified the whole prior proceeding.

No one knows for sure what exactly the law in California about marriage is now. Some lawyers say that Prop. 8 is now in place; others say that it is not. Gov. Jerry Brown has jumped in to say that, no matter what, he is going to authorize marriage licenses for same-sex couples. Time will sort it all out. But it is surely true that we are talking only about California. There is no possible effect of the Perry ruling upon any other state............

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