Last night, my friend C proposed to J. We're all delighted; they are a wonderful couple. C was nervous before hand. "I hope he says yes," said C, a lawyer. "Then all we have to do is pray that the Supreme Court denies cert."
Because, of course, C can't marry J unless Prop 8 falls. And Prop8 won't fall unless the Supreme Court lets it.
Prop8 has been found unconstitutional on broad grounds by US District Judge Vaughn Walker, whose opinion two years ago was that Prop8 proponents identified no compelling interest in taking marriage away from LGBT people, and that there was a broad right of same sex couples to marry. Then, the 9th Circuit court of appeals found that Prop8 was unconstitutional on narrow grounds that this unusual circumstance in California, where we had the right to marry for 6 months before it was taken away, fell afoul of precedent set in Romer v.Evans which took down a blatantly discriminatory Colorado proposition. The Prop8 proponents appealed to the 9th circuit en banc, but they declined to hear it.
There are three possibilities before us. The simplest is if the Supreme Court "denies certiori" which means that they decide not to hear the case. This would mean that the narrow decision of the 9th Circuit would stand, and marriage would return to California, and C and J could marry. That is the one C is hoping for, because then it will be over (bar the shouting--and you can count on there being a lot of shouting.) As Episcopalians, C and J can have their marriage blessed in church. And my wife and I can dance at their wedding.
However, if 4 Supreme Court justices want to hear the case, it will be argued before the court. And then anything goes. The hard right of Scalia, Thomas, and Alito (all three conservative Roman Catholics, even though Scalia never met a death penalty he didn't like) are just about guaranteed to vote against a right to marry. Kagan, Ginsburg, Breyer, and Sotomayor are likely to vote for us. That leaves the swing vote in the hands of Anthony Kennedy and John Roberts.
Kennedy is very conservative, but quite libertarian. WE tend to think hopefully of him because of his majority opinions on LGBT rights in Lawrence v. Texas (that's the one that decriminalized being gay) and the aforementioned Romer v. Evans. If he goes with the four liberal justices, that's 5 to 4 and we win.
Roberts surprised everyone with his recent decision upholding the health care law, when he broke with the conservative bloc. This has led to a lot of discussion that he is very aware of his legacy as a Chief Justice. Additionally, as an attorney, Roberts worked behind the sides on the brief for "our side" in the Romer case. Would Roberts want to be on the losing side of history? Wouldn't a 6-3 decision be lovely?
BUT it could also go against us, if those two justices "break" the other way.
what would a win get us? That's also a variable. They could find very narrowly, along the lines of the 9th circuit decision, under circumstances that apply only to CA. Or they could find broadly that American LGBT people have a right to marry. The likelihood of this last is about as likely as pigs flying, given the 32 hate amendments and initiatives passed by other states.
So for the sake of C and J, I hope the Supremes deny cert.
More here in this New Yorker article. And a good summary also here at this UPI report.