Prop 8's fate to be determined at the Supreme Court

Supreme Court takes on marriage equality, Prop 8 and DOMA

by Brian Leubitz

Mark your calendars for June 2013. That's the close of the current Supreme Court session, and by that time we should have a decision on marriage equality. On Friday, the Court announced that it would hear cases on both Prop 8 and the so-called "Defense of Marriage" Act. But there is a caveat in the Supreme Court's order:

About two decades after the campaign to win the right to marry for same-sex couples began, the Supreme Court on Friday afternoon agreed to consider - but not necessarily to decide - some of the most important constitutional issues at the heart of that national controversy.  Each side gained the opportunity to make sweeping arguments, for or against such marriages.  But the Court left itself the option, at least during the current Term, of not giving real answers, perhaps because it lacks the authority to do so. (ScotuBlog)

With respect to that open question of whether the Court has standing, it is a question that was at the center of much speculation before the 9th Circuit's decision. Ultimately, the Ninth Circuit determined that the proponents of the law, ProtectMarriage.com, had standing to defend it. If the Court decides that it doesn't have standing, Judge Walker's original decision will hold and marriages will resume in California.

Now, as a matter of scheduling, we should have oral argument for both cases early next year. The cases will likely be scheduled for the same day, but that is not definite at this point.

Turning to the merits, well, you can find many reasonable predictions. But the Dean of UC-Irvine Law is both esteemed and usually pretty accurate at this game. His take:

"I believe the court will find that Prop. 8 and (the Defense Of Marriage Act) are unconstitutional," Chemerinsky said. "The court decision will be 5-4 and I predict Justice Kennedy will write it. The court will say that the government has no legitimate interest in denying gays and lesbians the right to marry. ...

"Justice Kennedy wants to write the next Brown v. Board of Education, not the next Plessy v. Ferguson," Chemerinsky said.

Kennedy has actually been pretty good on LGBT rights issues, having written Lawrence v Texas and Romer v Evans, two of the most noteworthy gay rights cases.

For further discussion of possible options on how the Court goes on these cases, check out the Same Sex Marriage Section of ScotusBlog. NYU Law Professor Kenji Yoshino has a particularly interesting take on the three main ways that the Court could strike down Prop 8 without requiring nationwide marriage equality.

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