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've said 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.
