How will the Supreme Court rule on Prop 8?

[I spent the winter writing songs about getting better]

My guess would be just decline, which would in effect be the same as option 2.

[politicallefty]

I agree. I think both wings on the Court are too unsure of Justice Kennedy on the issue (which means there aren't four votes to take up the case). If DOMA is struck down without a broad 50-state ruling on marriage equality, I could see the issue coming back to the Court in another way. DOMA will almost certainly be taken up and the opinion(s) coming out of that should make for some good reading.

[Queen Mum Inks.LWC]

Decline to take it.

[Thomas D]

If they decline I wish they'd have done it yesterday. Legalizing gay marriage in 4 states with over 51 million citizens in one month would have been a nice trick to pull off.

[Frodo]

Decline -they don't want to make the mistake they made with Roe vs. Wade when they legalized abortion before enough of the country was ready for it.  To lessen the probable backlash, they'll wait until at least thirty states have legalized gay marriage before issuing a decision on it.  

[Bacon King]

Wildcard bet: Elena Kagan came out of the closet to her colleagues at that meeting on Thursday and made a strong case that people in her position shouldn't be denied the right to marry someone they love. The court is swayed by her personal appeal, and decides to use the Prop 8 case (and specifically, upholding the facts and decision of the district court trial) to unanimously legalize same-sex marriage nationwide as a basic human right. It'll be like Brown v. Board, with the unanimity of the court playing a huge role in the decision's acceptance throughout most of the nation. Kagan publicly comes out of the closet in the decision of the court itself, which all eight of the other justices join in a show of support.

[○∙◄☻¥tπ[╪AV┼cVê└]

Decline -they don't want to make the mistake they made with Roe vs. Wade when they legalized abortion before enough of the country was ready for it.  To lessen the probable backlash, they'll wait until at least thirty states have legalized gay marriage before issuing a decision on it.  

Loving v. Virginia is a much more relevant case here. Gay marriage is significantly more popular today than interracial marriage was in 1967.

[True Federalist (진정한 연방 주의자)]

Decline -they don't want to make the mistake they made with Roe vs. Wade when they legalized abortion before enough of the country was ready for it.  To lessen the probable backlash, they'll wait until at least thirty states have legalized gay marriage before issuing a decision on it.  

Loving v. Virginia is a much more relevant case here. Gay marriage is significantly more popular today than interracial marriage was in 1967.

Interracial marriage was legal in far more places in 1967 than it is now and was illegal only in the ex-Confederate States, Oklahoma, West Virginia, and Delaware when the Loving decision was handed down.  (Maryland repealed its miscegenation law after Loving was heard, but before the decision was rendered.

[Holmes]

Assuming the Supreme Court declines to take this case, is it my understanding that the decision can only be used as precedent in the Ninth Circuit and nowhere else?

[True Federalist (진정한 연방 주의자)]

Assuming the Supreme Court declines to take this case, is it my understanding that the decision can only be used as precedent in the Ninth Circuit and nowhere else?

Yes, and it would only apply in a case where a court legalized same-sex marriage and a later law illegalized it.

One possible outcome not mentioned in the poll above that might appeal to a moderate hero like Kennedy, but probably no one else, yet the liberal four will go along with it for the crumb it offers, is that the court rules that Prop 8 could prohibit the establishment of new same-sex marriages, but not revoke the ones that were entered into while it was legal to do so in California.

[Baylor98]

I believe they will probably reject the case, but why should it have gone this far?  The people of California voted for it 52% to 48%.  That was democracy in action.  In my state of Missouri people in 2004 voted nearly 90% to ban same sex marriage.  Yet no court challenged what the people decided.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

I believe they will probably reject the case, but why should it have gone this far?  The people of California voted for it 52% to 48%.  That was democracy in action.  In my state of Missouri people in 2004 voted nearly 90% to ban same sex marriage.  Yet no court challenged what the people decided.

That's because it was 2004, when whole swathes of the country uncritically accepted the idea that it was a fait accompli that this was and should be one of the things people get to vote on.

[Franzl]

I believe they will probably reject the case, but why should it have gone this far?  The people of California voted for it 52% to 48%.  That was democracy in action.  In my state of Missouri people in 2004 voted nearly 90% to ban same sex marriage.  Yet no court challenged what the people decided.

A democratic vote doesn't necessarily make something constitutional.

[Barnes]

I believe they will probably reject the case, but why should it have gone this far?  The people of California voted for it 52% to 48%.  That was democracy in action.  In my state of Missouri people in 2004 voted nearly 90% to ban same sex marriage.  Yet no court challenged what the people decided.

A democratic vote doesn't necessarily make something constitutional.

Exactly.  See any historical situation where a dictatorship came to power by perfectly legal means...

Personally, I think Prop 8 will be struck down for California only, but the larger question (DOMA) will eventually be struck down nation wide.

[Holmes]

Assuming the Supreme Court declines to take this case, is it my understanding that the decision can only be used as precedent in the Ninth Circuit and nowhere else?

Yes, and it would only apply in a case where a court legalized same-sex marriage and a later law illegalized it.

One possible outcome not mentioned in the poll above that might appeal to a moderate hero like Kennedy, but probably no one else, yet the liberal four will go along with it for the crumb it offers, is that the court rules that Prop 8 could prohibit the establishment of new same-sex marriages, but not revoke the ones that were entered into while it was legal to do so in California.

I see, thanks. As for the second part, didn't the California Supreme Court make that ruling in, I believe it was 2009? Why would the US Supreme Court make that same ruling?

[I spent the winter writing songs about getting better]

One possible outcome not mentioned in the poll above that might appeal to a moderate hero like Kennedy, but probably no one else, yet the liberal four will go along with it for the crumb it offers, is that the court rules that Prop 8 could prohibit the establishment of new same-sex marriages, but not revoke the ones that were entered into while it was legal to do so in California.

That's actually the status quo, and it's tough to uphold Prop 8 without doing so, otherwise Prop 8 constitutes an ex post facto law.

[Queen Mum Inks.LWC]

I don't think they'll take it. If they do, I think it'll be upheld.

[I spent the winter writing songs about getting better]

Kennedy's not much of a culture warrior type, but he also isn't fond of pushing issues like this, so my guess is he'd probably rule against Prop 8 but also keep the decision so narrow to prevent any effect in any other state.

[True Federalist (진정한 연방 주의자)]

One possible outcome not mentioned in the poll above that might appeal to a moderate hero like Kennedy, but probably no one else, yet the liberal four will go along with it for the crumb it offers, is that the court rules that Prop 8 could prohibit the establishment of new same-sex marriages, but not revoke the ones that were entered into while it was legal to do so in California.

That's actually the status quo, and it's tough to uphold Prop 8 without doing so, otherwise Prop 8 constitutes an ex post facto law.

Not quite.  If would if any benefits such as tax deductions for being married and the like that accrued between marriage and the implementation of prop 8 were clawed back, but it wouldn't be an ex post facto law if California declined to grant those marriage benefits after the implementation of Prop 8 because it no longer considered those couples to be married.

You're speaking with someone who lost and regained the right to buy beer and wine three times as the drinking age went up each January 1 for three years.  That didn't make the way South Carolina increased the drinking age to keep its Federal highway funds an ex post facto law, just a stupid law.

[politicallefty]

Apparently, SCOTUS is taking up both DOMA and Prop 8. I definitely didn't expect the latter. I think this means we're looking at a much broader decision.

[The Mikado]

It's not that obvious with DOMA: one of the questions they're tackling is whether Boehner et al. have standing to defend DOMA.  There's a chance that they're ready to make a ruling not on gay marriage, but whether the House can intercede to defend a federal law the Justice Department has given up on.

[Blue3]

It's not that obvious with DOMA: one of the questions they're tackling is whether Boehner et al. have standing to defend DOMA.  There's a chance that they're ready to make a ruling not on gay marriage, but whether the House can intercede to defend a federal law the Justice Department has given up on.

That reminds of the question of whether the Supeme Court could rule on ObamaCare's individual mandate, when the mandate/tax hadn't taken effect yet (referencing the anti-injunction act or something similar). The Supreme Court basically ignored that law, because they really wanted to rule on ObamaCare. I expect the Supreme Court has taken up DOMA and Proposition 8 because they really want to rule on them, and won't dismiss DOMA simply because Boehner and not the DoJ are the defendents.

[Thomas D]

So if the Court rules that the House GOP doesn't have standing, does that mean the lower courts ruling stands and Section 3 of DOMA is dead?

[True Federalist (진정한 연방 주의자)]

So if the Court rules that the House GOP doesn't have standing, does that mean the lower courts ruling stands and Section 3 of DOMA is dead?

It would be dead only in those circuits where a court has ruled, which is the First, Second, and Ninth circuits, which cover most but not all states that have legalized same-sex marriage are.  Maryland, DC, and Iowa are in other circuits.

[Thomas D]

So the Federal government would have to recognize same sex marriages in Vermont but not Maryland? I don't think that's something the Court would want to put in place.