How Will SCOTUS Rule on Prop. 8 and DOMA?

The Supreme Court has announced that it will be hearing both of the major gay-rights cases it was considering this term. Facing constitutional scrutiny are key provisions of the federal Defense of Marriage Act, which prohibits the federal government from recognizing same-sex marriages performed in the states, and California's Proposition 8, which banned same-sex marriage in the state. When combined with the major affirmative-action and voting-rights cases the court will also be handing down this term, this could be the most consequential Supreme Court term in decades.

The two gay-rights cases face slightly different prospects. As I'veĀ saidĀ before, the argument that DOMA infringes on states' rights is likely to appeal to both Justice Anthony Kennedy's sympathy for gay rights and his skepticism of federal power. I would not even be shocked if Justice Clarence Thomas joined an opinion striking down the heart of the law, Section 3, and at least 5 votes seem very likely.

The Prop. 8 case is a little harder to handicap, and the chances for the Court setting a terrible precedent are greater. There are three paths the Supreme Court can take: It can 1) strike down Prop. 8 with a broad ruling that would make all existing bans on same-sex marriage unconstitutional; 2) strike down Prop. 8 with a narrow ruling that applies only to the specific facts of the case in California; or 3) uphold Prop. 8 with an opinion holding that bans on same-sex marriage do not violate the Constitution. The Ninth Circuit opinion the Court is reviewing falls into category two: It struck down Prop. 8 on very narrow grounds. The Ninth Circuit clearly thought that the middle ground would prove the most appealing to Kennedy, and I think this assumption is sound. Kennedy has never ruled against gay and lesbian rights in a major case, but making same-sex marriage a national constitutional right would go much farther than striking down a few rarely enforced anti-"sodomy" laws or a unique Colorado constitutional amendment, as Kennedy did in Lawrence v. Texas and Romer v. Evans.

Tentatively, I would guess that the most likely outcome of the California case is that Prop. 8 will be struck down with a narrow opinion very similar to Kennedy's opinion in Romer v. Evans. I would not be surprised, however, by either a blockbuster opinion making same-sex marriage legal in all 50 states, and I would also not be surprised if Prop. 8 is upheld. The oral argument will be fascinating and the outcome as suspenseful as this year's ruling upholding the Affordable Care Act. If DOMA were to upheld, conversely, this would be a major surprise and a bitter defeat for social justice.


There is technically a fourth option, as well. If SCOTUS uses this, then Prop 8 reverts to the DISTRICT Court ruling (Walker, J.) and still only applies to California. This option is "standing." It could determine proponents of Prop 8 did not have standing to file, after California refused to see it further than the STATE Supreme Court. Kennedy is likely not appealed with this either since he isn't fond of States interfering with civil rights any more than the federal government, even where it is explicitly a state issue (i.e., education, marriage, some issues with privacy, etc.). It is also less likely to assuage other Justices as it will likely reach no real final decision, and what would then stop voters from doing an Act Two and start the fight all over?

Truthfully speaking, they are more likely than not to put the issue to its final rest, the big decision is whether it rests only in California or they rest it nationally, especially with the recent wave of SSM statewide legalizations that could be easily subjected to an undoing just as it was in California in 2008.

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