metta8 saidDavid Boies Predicts Supreme Court Will Overturn Gay Marriage Ban Prop. 8
The more I think about it, the less I believe that SCOTUS will hear the prop 8 case - which may just be as well, as marriages can resume in CA then right away. I can't imagine any good reason for them to hear this case, as it is very narrow and hardly sets a precedent for anything else, doesn't significantly extend previous precedents, nor is in ccontradiction with rulings from other circuits or previous SCOTUS precedents (one would hope).
The 9th circuit ruling is narrowly based on the Romer case in Colorado, where they ruled that a group (gays in that case as well) cannot have their right to political participation encumbered by a referendum, just because they're unpopular. And in the prop 8 case, this ruling was applied to CA, meaning that the existing right to marry for all, as enacted by the legislature, cannot be taken away for some just because they hate us. Hardly new legal ground, certainly nothing that would compel SCOTUS to step in here.
The standing issue was decided narrowly based on state law, and the 9th circuit left the article III question larely unadressed. SCOTUS could potentially find that an old Arizona case applies here and deny standing to the proponent, which would not change the outcome. This seems like the kind or arcana that only Scalia would love to me, not something anyone else would want to waste time with, and certainly not in such a high-profile case.
Then, there is Baker v. Nelson, a one-sentence decision form 1971 stating that the denial of gay marriage poses no federal question. It is widely seen as obsolete, except maybe by Thomas, but if SCOTUS wants to do some house cleaning they could do so in this context. But dispensing with Baker is something they can do in the DOMA cases (which they essentially have to hear) as well.
Then, of course, they could decide to expand Romer and rule that this kind of encumberance of a fundamental right can never be up for a vote, and with it invalidate all state marriage amendments. I don't think they're ready to do that, but of course one can hope.
Any better thoughts on this from some sharp legal eagle?