elsewhere: grim amusements - proposition 8 falls ... for the moment

grim amusements / 7 february 2012 / proposition 8 falls ... for the moment

...Assume you have a known four justice block of Roberts, Scalia, Thomas and Alito against broadening the decision to allow gay marriage throughout the land. The remaining justices are Kennedy, Kagan, Sotomayor, Ginsburg and Breyer. The decision is assumed to rest on what Kennedy decides to do. (I think it's probably safe to assume that Kagan, Ginsburg and Breyer would vote to strike down Prop. 8 on broader grounds and to allow gay marriage throughout the land. The few decisions that Sotomayor has had to make in this area prior to her Court experience lead one to think that she would probably support this decision, but also support the way in which it has been restricted so that it only applies to California.) It's difficult to imagine the author of Lawrence v. Texas voting to decide that marriage is so different in kind from everything else involved in that decision that he could sustain voting to refuse to allow marriage. It is beyond logically inconsistent, as Scalia went to some pain to point out in his furious dissent in that case.

Thing is, though, if the Court decides that they're not ready for this issue, but that they have no objection to striking down Prop. 8 in a way that's consistent both with Romer v. Evans and with Lawrence v. Texas, all they have to do is decline the case. Frankly, that really does seem the most likely result to me. [...] What I think is really going to be interesting, though, is what happens in Washington state after this. It seems likely that the Washington state legislature and governor are going to sign laws into existence that allow gays to marry in that state in the extremely near future. The Washington state branch of Project Marriage has already said that they plan to get the signatures to put the issue on the next ballot, and barring major disaster, they shouldn't have problems getting enough people to sign. And if it gets onto the ballot, it will pass, probably by a broader majority than Prop 8 passed....