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US Supreme Court ruling on Proposition 8: Six possible outcomes

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  1. 3 or 6 is the most probable due to the extreme ends of public opinion and the real risk of potential religious based conflicts

  2. Mark Cross 13 Jun 2013, 8:30pm

    My predictions on the pending Supreme Court verdicts: the decisions will not be released until Thursday June 27th; the decision in the landmark case Lawrence v. Texas was released on Thursday, June 26th, 2003, almost exactly 10 years ago, and it would be jumping the gun on that anniversary to release the decisions any earlier. DOMA will be struck down, and state constitutional amendments limiting marriage to heterosexuals will be struck down per the Equal Protection Clause of the 14th Amendment of the US Constitution. And in a surprise move — or not — Antonin Scalia will come out gay and simultaneously propose to Clarence Thomas…who will giddily accept. Perhaps the odds are long on some of those predictions…any takers?

  3. Even though this is a court ruling, it will be a political decision not a legal one. Supreme court justices are political appointments made by the president, and politics affect all their rulings.

    The court is unlikely to decide that there is no constitutional right to marriage, as they know that they would be on the wrong side of history. They won’t want to look as out of touch as they did in the Dred Scott decision (in 1857) when they ruled that African Americans are not citizens, and that slavery is OK.

    Also, they won’t want to rule that there is a constitutional right to marry, as that would upset the religious bigots.

    So most likely they will avoid the merits of marriage, and rule on some technicality – e.g. about the standing of the Prop 8 proponents, or about the legitimacy of the Prop 8 process.

    The result will probably make marriage legal in California, but have no impact on the rest of the country. So expect plenty more court cases to follow.

    1. I think the case the SCOTUS will most be considering as a historical example is Bowers v. Hardwick. It’s a lot more recent and a lot closer to the issue at hand. The Court made a homophobic ruling in 1986 and overturned it in 2003 (Lawrence v Texas). They know that it isn’t likely to take 17 years to overturn a ruling against marriage equality.

      BTW, most people assume that after Lawrence there are no more sodomy laws in the US. This is not true. Thirteen states and the UCMJ have laws banning male sodomy. Lawrence just means the will eventually lose if they try to enforce those laws. (Except the UCMJ, of course. The military are still free to prosecute sodomites.)

    2. I quite agree that they will dodge the issue. Prop 8 will be overturned on standing or just dismissed as improvidently granted, and California will have gay marriage again but no broader ruling. DOMA will fall on 10th Amendment grounds, the Feds don’t get to say who gets married, gay is not the issue. The court is not ready to rule more widely and is not going backwards either. The most we could hope to get out of this would be a finding that anti-gay laws be subjected to a higher level of scrutiny. And since they can dodge the question of ‘gay’ in making the right outcomes, they probably will, thus no ruling on scrutiny.

  4. Better than most PN articles on this subject but…

    “In 2010, the United States District Court ruled that Prop 8 was unconstitutional, and issued an injunction against enforcing it.

    “The US 9th Circuit Court of Appeals also affirmed that Prop 8 was unconstitutional in 2012.”

    This would lead one to believe that SS marriages were going on in CA today. This is not the case because each of these courts put a stay on their rulings.

    “Following demonstrations, and protests against Prop 8, the California Supreme Court challenged the legislation,”

    Various parties started law suits challenging Prop 8 in CA courts. One made it to the CA SC who ruled is was a constitutional amendment to the CA Constitution.

    1. “In the most confusing outcome, the court could find that the supporters of Prop 8 never had the right to defend the law on behalf of the state,”

      This isn’t right either. No one is challenging letting intervene to defend Prop 8 in the Federal District Court. What is being challenged is’s right to APEAL the ruling of the District Court.

      “The court could invalidate Prop 8, but let the Court of Appeals’ ruling stand, which would allow same-sex marriages to resume in California, possibly a month after the ruling.”

      Well, that just means upholding the 9th Circuit’s decision. SF County has already said they will start issuing marriage licenses again as soon as the 9th Circuit lifts its stay.

      These are just the most glaring errors in this story. Do the writers at PN even understand what they are writing?

      If you want good, accurate news on this issue go to

  5. I think Prop 8 will go either as ‘improvidently granted’ leaving the 9th circuit decision in place or as ‘appellants lack standing’ which leaves the District Court ruling place. I do not think the votes are there for more. They effectively dodge the use of ‘gay’ in their rulings.

    For the same reasons I think DOMA will be overturned, possibly with multiple opinions, but as a minimum it is simply well established that states, not the Federal government, decide who is married. This way ‘gay’ does not play a part in the decision.

    No ‘advance’ for gay rights here, but a practical advance for married gay people and for Californians.

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