Waiting on Proposition 8 and DOMA decisions: In Plain English
To the extent that you can make any predictions based on the oral argument, Windsor and her supporters may have reason to be cautiously optimistic. The Court’s four more liberal Justices – Justices Ginsburg, Breyer, Sotomayor, and Kagan – seemed to be squarely on her side. They may also have a vote from Justice Anthony Kennedy (who is often regarded as the swing vote on the Court) to strike down the law as well, although perhaps for a different reason. Generally a staunch supporter of states’ rights, he seemed troubled by the idea that with DOMA Congress was trying to regulate marriage – which, he seemed to indicate, has traditionally been the role of the states.
But there’s a chance that the Court might not even get to the question whether DOMA is constitutional at all. The case may have a fatal procedural flaw. In a normal case that comes to the Court, the party that lost in the lower court is the one asking the Court to review the case. But this is not, as you may have figured out by now, the average case. Windsor and the United States won in the lower court, by getting a ruling that DOMA is unconstitutional. And to make things even more complicated, usually it is the federal government that appears in court to defend the constitutionality of federal laws, but the government isn’t doing that here; House Republicans are doing it instead.
The fate of California’s Proposition 8, before the Court in Hollingsworth v. Perry, seems murkier than DOMA’s. Proposition 8 was a response to a 2008 decision by the California Supreme Court ordering the state to begin issuing marriage licenses to same-sex couples. Before the end of that year, California voters had passed Proposition 8’s ban on same-sex marriage. A few months later, Boies and Olson filed a lawsuit challenging the ban on behalf of two same-sex couples who wanted to get married......
The one thing that didn’t seem likely after the oral argument was what some supporters of same-sex marriage had long feared: a decision holding that the state’s ban on same-sex marriage is constitutional. As I explained in an earlier post, some gay rights groups had been irked by Boies and Olson’s decision to bring the Proposition 8 case at all; that split reflected a concern that the country wasn’t ready yet for same-sex marriage, and that a ruling upholding Proposition 8 would be a huge setback for the cause. Of course, public support for same-sex marriage has swelled significantly in the four years since Olson and Boies filed their lawsuit, and the expectations of same-sex marriage supporters have increased along with that support. And so it will be more than a little ironic if the same people who once feared a ruling on the merits will now be disappointed that they won’t get one.
http://www.scotusblog.com/2013/06/waiting-on-proposition-8-and-doma-decisions-in-plain-english/#more-165587