It has been a couple of hours since the Supreme Court heard oral arguments regarding Prop 8. There are a lot of different reactions, and a lot of different opinions trying to decide what is going to happen. One thing that has not been mentioned in all of the analyses is something very important to remember- the Supreme Court Justices tend to be a rather cowardly lot over all.
As with almost every case that has come before the Supreme Court of late, it is important to remember that the Court will decide what it will decide and nothing any of us pundits say is going to matter in the end.
For instance, Pete Williams, speaking to MNBC’s Thomas Roberts, noted that he believes that the justices are “not prepared to issue any kind of sweeping ruling about gay rights.” He also noted that they are “worried about writing a decision applying to other states.” Here is the segment:
Now, sit back, take a deep breath, and understand something- the Supreme Court, by and large, tends to be rather cowardly and usually only issues a couple of controversial rulings during their tenures. After their rulings on the Affordable Care Act and Citizen’s United, odds on are that the Supreme Court is going to kick this back down the ladder. They won’t rule that anything is unconstitutional, but rather hand it back down to the 9th Circuit and say “your ruling stands” or they may kick it all the way down to the ruling from Judge Walker at the District Court level.
Both would invalidate Prop 8 entirely, but do very little else.
They will probably do the same with US v. Windsor and the Defense of Marriage Act.
On the other hand, they may have asked all these questions in order to actually decide what they are going to rule and will actually make a sweeping ruling.
In truth, kicking the issue back down the ladder actually amounts to something akin to maintaining the status quo. In truth, there is no Constitutional guarantee of marriage- for straights or gays.
So, if I have to put it this way, odds on are that the Supreme Court is going to kill Prop 8, but mostly by invalidating the right of the people who argued to keep it in place to appeal the original verdict. They will likely do the same in US v. Windsor since there is no actual need for the House to step up to defend a law. That is, Constitutionally speaking, the jurisdiction of the Executive Branch, and they have the right to not defend all cases. Finally, a case will come up which will be the lesbian or gay Loving v. Virginia, which will strike down the bans on same-sex marriage across the nation based upon Loving v. Virginia which states that once someone is married in one state, they are married throughout the United States.
But the right to get married will likely never be established for lesbians, gays, bisexuals or straight people.