Is anyone really expecting the Prop 8 case to take away civil unions and same-sex marriages?
It seems like the worst-case scenario is that it invalidates the same-sex marriages that were conducted in California, and that is highly unlikely.
What I'm expecting is that the court will find that having civil unions that are marriages in all but name is unconstitutional. The worst case possibility if that happens is that in Oregon, Nevada, and Colorado, where same-sex civil marriage is constitutionally banned but civil unions are authorized by law is that in those states because the state constitution trumps ordinary state law, the civil unions are kaput, possibly with a grandfathering of existing unions or even existing civil union laws. In Delaware, Hawaii, Illinois, New Jersey, and Rhode Island, where civil unions are authorized by law but there is no constitutional provision banning same-sex civil marriage, I expect the Prop 8 ruling to upgrade those civil unions to civil marriages. California is complicated, but since Prop 8 changed the law there from having both marriages and civil unions legal to having just civil unions legal, I think there Prop 8 would be struck down, restoring the legality of civil marriage. The reason for a possible retrograde in Oregon, Nevada, and Colorado is that there, the civil union legislation was passed after the anti-civil marriage constitutional amendment.
The most progressive construction that might result from the Prop 8 case is that save in those states where both same-sex civil marriage and same-sex civil unions are banned by their state constitutions, same-sex civil marriage is authorized, but that strikes me as unlikely. If the court strikes down all bans on same-sex marriage, which is possible (I think the odds are somewhere in the 20-40% range for that to happen. I.e. unlikely, but not highly unlikely.) it will do it via the DOMA case, not the Prop 8 case. The DOMA case is a straightforward one for deciding whether same-sex civil marriage is a civil right. The Prop 8 has some interesting twists and turns in it for deciding what to do constitutionally with the separate-but-equal civil unions.
