The Supreme Court will hear the challenge to California’s Prop 8 and to one case involving the Defense of Marriage Act. The decision by the court means that same-sex marriage is now about to be put to the test. Arguing for striking down Prop 8 are two powerhouse lawyers- Ted Olsen and David Boies.
Currently, the pundits are stating that the big vote will be Anthony Kennedy, who has written the rulings in two landmark gay rights cases; however, the court may rule to strike down parts of DOMA based upon the Constitution, which on its face, DOMA is violating. The other thing is that the Supreme Court could rule just that California cannot rescind the right to get married without ruling about the constitutionality of marriage being a right.
Justice Kennedy is often seen as the swing vote, but Chief Justice John Roberts is also another vote that could be swung as he often tends to be more liberal than Justices Antonin Scalia, Samuel Alito and Clarence Thomas with regards to social issues and may be swayed by the Conservative tack that Ted Olsen, who was Solicitor General for George W. Bush, has taken in his arguments about same-sex marriage. Currently, there are four solid votes for same-sex marriage rights and three against with two possible swing votes.
Despite the popular opinion about same-sex marriage, what might sway the courts the most is the number of times that the appellate courts have struck down DOMA, and the number of judges who have done so and where they have come from in terms of their rulings.