During Supreme Court arguments last week over California's gay marriage ban, several justices suggested the case never should have come before the court in the first place.
“I wonder if the case was properly granted,” said Justice Anthony Kennedy, according to the transcript of the argument over California's gay marriage ban Proposition 8.
Kennedy's observation raises this question: Why did the Supreme Court decide to hear the Prop 8 case in the first place after an appeals court struck down the ban?
Only four justices need to decide to hear a case, and The New York Times' Adam Liptak thinks it was the court's conservative wing who decided to take it on. He has an interesting theory: The court's right wing wanted to go ahead and hear the case before even more people got on board with the idea of gay marriage.
"It is not that the conservatives felt certain they would win. It is that their chances would not improve in the years ahead," Liptak writes.
The high court took on the Prop 8 case along with a challenge to the Defense of Marriage Act, a law that denies federal benefits to same-sex couples. Two appeals courts struck down DOMA, and it's not not unusual for the high court to review a decision to strike down a federal law.
Liptak points to a comment from Antonin Scalia as evidence that the court's conservatives pushed to hear Prop 8 too. After Kennedy suggested the court might dismiss the case, Scalia responded by saying, "It’s too late for that now, isn’t it? ... We have crossed that river."
Liptak took that comment as a "signal that it was a conservative grant."
That theory shouldn't be taken as a hard fact though. We asked Supreme Court lawyer Carter Phillips (who's argued 76 cases before the court) what he thought of Liptak's theory, and he told us it seems like "folly" to him to try to figure out where the four votes came from.
"I think the court had to decide DOMA given the status of the issues in the lower court," Phillips says. "So, it would not surprise me if all nine justices voted to grant DOMA."
Once the high court decided to grant DOMA, Phillips says, it would have been "strange" to pass on Prop 8 since the two gay marriage cases were so closely related.
"There was little question that whatever the court would decide about DOMA could potentially affect Prop 8. So if the court would hold anyway, then it would make as much sense just to grant in order to consider the Prop 8 wrinkles directly in tandem with the DOMA case," Phillips said.
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