When Ted Olson and David Boies filed their challenge to Prop 8 in 2009, there was a lot of debate about the timing of the case. Olson & Boies expressed their strong confidence that there were five votes on the Supreme Court for a national constitutional right to same-sex marriage. According to Olson & Boies, their case would lead the way and establish that right. Others worried that Olson & Boies were acting too soon, and that an early challenge would lead to another Bowers v. Hardwick that would set back the cause of gay rights by delaying a future Lawrence v. Texas (or, if you prefer, that it would result in a Plessy that would delay a future Brown).
If today’s oral argument was an accurate indicator, Olson & Boies were wrong. Based on the oral argument, it seems like there aren’t five votes on the Supreme Court for a broad constitutional right to same-sex marriage. Nor did it seem like there were enough votes — indeed, perhaps there were no votes at all — for a narrower rule that would establish same-sex marriage in some states but not others. In a sense, then, the critics of Olson & Boies appear to have been correct in their vote-counting. It looks like the votes just aren’t there, at least yet.
Perhaps the most intriguing aspect of the Hollingsworth v. Perry argument, however, is that this doesn’t mean that the Court will render another Bowers. During the oral argument, Justice Kennedy repeatedly suggested that the fact that the issue was in flux meant that the Supreme Court shouldn’t get involved. And he didn’t mean that the Court should not get involved by ruling against the constitutional right and leaving the issue to the ballot box. Instead, he seemed to be arguing that the Court shouldn’t get involved in the sense that Alex Bickel called the passive virtues — declining to rule on the issue while societal views are not yet resolved. See Alexander Bickel, Foreword: The Passive Virtues, 75 Harv. L. Rev. 40 (1961). Recall how Bickel characterized Justice Frankfurter’s opinion in Poe v. Ullman, which had declined to rule on the constitutionality of an anti-contraception law:
The point of Mr. Justice Frankfurter’s opinion announcing the judgment of the Court, as Justice Harlan was able to show, is not that the plaintiffs had no standing, not that the controversy was feigned or unreal, and not, as in Times Film, that it was “so artificially truncated as to make the cases not susceptible to intelligent decision.” The point is that the job of the Court, even in a perfectly real, concrete, and fully developed controversy, is not to resolve issues on which the political processes are in deadlock, but to do what it can to break that deadlock, so that the political institutions may make their decision before the Court is required to pass judgment on its validity.
My sense of Justice Kennedy’s questioning at the argument today was that he might see the model for today’s case as Poe, not Bowers or Lawrence. That is, it may be best for the Court to exercise the passive virtues and wait for “the political institutions [to] make their decision before the Court is required to pass judgment on its validity.” Exactly how to achieve that isn’t entirely clear. Unlike in Poe, many lower court challenges to laws prohibiting SSM can be brought, making it harder for the Supreme Court to stay out of the debate. But it sounded like Kennedy’s reaction was to use the passive virtues to avoid either a Bowers or a Lawrence.