I've been listening to NPR today, and there's been quite a few Supreme Court Prop 8/DOMA case predictions from different legal experts.
What's your prediction for the decisions?
Mine (for now, who knows, I might change my mind):
-I kind of think that the decision will be one of those awful splinter decisions, where each justice has his/her own opinion where they cuncur in part, dissent in part.
-I am afraid that the majority opinion won't allow a broad legalization of same-sex marriage (and I think Justice Kennedy will be in the majority opinion this time for either the Prop 8 or the DOMA case), because the debate is still fairly new in our society and I think they'll want to see how the democratic process works things out a bit.
-I do think Sotomayor and Kagan (and possibly Ginsburgh) will be more for a broad legalization of same-sex marriage, or at least will be against states making civil unions/same-sex marriage illegal, though I think this part of their decisions will be in the minority.
- While some people think the court may try to wiggle out of the Prop 8 case based on some of the questions in the oral arguments today, I don't think they will, because why agree to hear a case if you're just going to say "oh, we don't have the authority to hear it"? (though I believe the court has done that in the past). I also don't think they're going to make a California-specific ruling on the Prop 8 case.
- I think the Prop 8 case's majority will say something like the democratic process in each state can decide if there's going to be same-sex marriage there, but in states that allow civil unions, they're just going to have to make the civil unions become a marriage, since traditionally that sort of policy is up to the state's "welfare" powers and many people still see the "constitutional right to marriage" as a novel thought and I think the conservative justices won't necessarily see that as being protected by the 14th amendment.
- I think the DOMA case is going to have a bigger impact in the long run and I think the Supreme Court will strike it down, because if states are able to decide if they're going to allow civil unions/marriages, not allowing it on federal stuff makes the states policies pretty void for many things, and I don't think the court will see the federal government having as great of an interest in marriage policies as the states would.
I think the decisions are supposed to be out next week or so, but tell me your thoughts! It's always interesting to hear people's predictions, even though me and just about everyone else was way off with the predictions for the Affordable Care Act case. :D
First things first.
A key issue is "standing" to bring suit. Generally the US Supreme Court does not overturn state supreme courts on a state issue. But in the case of Prop 8, a State Constitutional Amendment passed by the majority voters, the Governor and the Attorney General of the the State chose not to defend the initiative in court. The question then becomes, "who has standing to represent the Proposition's validity?"
I like your analysis, though.