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How Will SCOTUS Rule on Prop. 8 and DOMA?

Scott Lemieux 
December 7, 2012
http://prospect.org/article/how-will-scotus-rule-prop-8-doma-challenges

The Supreme Court has announced that it will be hearing
both of the major gay-rights cases it was considering
this term. Facing constitutional scrutiny are key
provisions of the federal Defense of Marriage Act,
which prohibits the federal government from recognizing
same-sex marriages performed in the states, and
California's Proposition 8, which banned same-sex
marriage in the state. When combined with the major
affirmative-action and voting-rights cases the court
will also be handing down this term, this could be the
most consequential Supreme Court term in decades.

The two gay-rights cases face slightly different
prospects. As I've said before, the argument that DOMA
infringes on states' rights is likely to appeal to both
Justice Anthony Kennedy's sympathy for gay rights and
his skepticism of federal power. I would not even be
shocked if Justice Clarence Thomas joined an opinion
striking down the heart of the law, Section 3, and at
least 5 votes seem very likely.

The Prop. 8 case is a little harder to handicap, and
the chances for the Court setting a terrible precedent
are greater. There are three paths the Supreme Court
can take: It can 1) strike down Prop. 8 with a broad
ruling that would make all existing bans on same-sex
marriage unconstitutional; 2) strike down Prop. 8 with
a narrow ruling that applies only to the specific facts
of the case in California; or 3) uphold Prop. 8 with an
opinion holding that bans on same-sex marriage do not
violate the Constitution. The Ninth Circuit opinion the
Court is reviewing falls into category two: It struck
down Prop. 8 on very narrow grounds. The Ninth Circuit
clearly thought that the middle ground would prove the
most appealing to Kennedy, and I think this assumption
is sound. Kennedy has never ruled against gay and
lesbian rights in a major case, but making same-sex
marriage a national constitutional right would go much
farther than striking down a few rarely enforced
anti-"sodomy" laws or a unique Colorado constitutional
amendment, as Kennedy did in Lawrence v. Texas and
Romer v. Evans.

Tentatively, I would guess that the most likely outcome
of the California case is that Prop. 8 will be struck
down with a narrow opinion very similar to Kennedy's
opinion in Romer v. Evans. I would not be surprised,
however, by either a blockbuster opinion making same-
sex marriage legal in all 50 states, and I would also
not be surprised if Prop. 8 is upheld. The oral
argument will be fascinating and the outcome as
suspenseful as this year's ruling upholding the
Affordable Care Act. If DOMA were to upheld,
conversely, this would be a major surprise and a bitter
defeat for social justice.

Scott Lemieux is an assistant professor of political
science at the College of Saint Rose. He contributes to
the blogs Lawyers, Guns, and Money and Vox Pop.

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