Off Ramp Strategy

03.27.13

Will the Supreme Court Dodge a Big Marriage Equality Decision?

Jonathan Rauch predicts the Supreme Court will go evasive in the gay marriage cases:

The justices did show a lot of interest in a fourth option: an off-ramp. They would decide that the plaintiffs lack standing to bring the case, because California had chosen not to appeal a district court's decision overturning Proposition 8.

The effect would be to knock down California's gay-marriage ban on a technicality, without affecting the rest of the country.

Politically the off-ramp presents problems of its own. As several justices pointed out, it implies that if state officials don't like the result of a voter initiative, they could subvert it by defending it badly, baiting a court to overturn it, and then choosing not to appeal.

So: the law is unhelpful, but the politics are hard. But if I had to guess, I'd say that option 4, the off-ramp, will look less unappealing that the other three options. I didn't see five votes for anything else.

[Below: Rauch and David Blankenhorn discuss the future of marriage in a dialogue hosted by America Public Media's "On Being"]