Conservatives got the best Prop 8 Decision they could get, which was still a loss (Hooray)

[cthulu2016]

Some comments took this as a downer post. It is not! It is a post about the 'inside baseball' type reasons that proably, in my guess/analysis, led to the peculiarity of Roberts and Scalia voting in a way the will have gay people getting married in California tomorrow, with gay-friendly Kennedy voting the other way. It's about court manuvering, and the Roberts stamp/philosophy, not who won or lost. We won. Big time.

If the Prop 8 decision on whether the issue was properly before the court to begin with had gone the other way (that it WAS properly before the court) then the Prop 8 question would have been decided on it merits, probably another 5-4 decision striking down Prop 8 as discriminatory.

Two decisions on the same day decided on the same equal protection grounds would have been an even stronger statement.

So the decision that the Prop 8 challenge lacked standing was the best the RW could have hoped for, in context. Either way, same sex marriage would be restored to legality in California, so the only turf left to protect was preventing a Prop 8 decision on its merits that applied to ALL the states.

Thus not deciding the case was better than losing the case, and a RWer given that narrow choice would decide to punt rather than take a beating.

The justices were split on a non-idealogical legal question (standing) with Scalia and Thomas on different sides. (Rare) Kennedy, who WROTE the DOMA decision and is obviously gay-friendly, was on the "losing" side in the Prop 8 decision... but I think that Kennedy would have struck down Prop 8 if it had to be decided by the court.

And justices know that stuff. They know 99% of the time what all the other justices think. They circulate writing about the cases through the court for months. Even if WE don't know for sure, Roberts had a 99% sense of how Kennedy would vote... if he had to, despite personally thinking the case lacked standing.

(If the court had voted 6-3 that the case had standing then everyone would vote again on the merits -- whether to strike down prop 8 or not. Those two votes would have had no connection to each other.)

With the court split on the standing question (which had nothing to do with whether Pro8 8 is constitutional or not), Roberts voted in the way that would prevent a second ground-breaking pro-gay ruling on the same day.

That's my guess.

(The alternate analysis is that the court would have upheld Prop 8, and that even knowing that, the reason gay people can now marry in California is because Scalia is so principled. I find my analysis more plausible than that.)

[BainsBane]

1. way to snatch defeat from the jaws of victory

a Democratic specialty.

[geek tragedy]

2. Do we know that Kennedy would have struck down Prop 8? nt

[Bluenorthwest]

6. Of course not. This is a narrative needed to explain Sotomayor's vote that Prop 8 had

standing.

[cthulu2016]

11. She did not vote that Prop 8 had standing

She voted that the people who initiated the law suit had standing -- that the Supreme Court COULD decide the Prop 8 case.

And that vote cannot be reasonably construed as a vote for or against Prop 8. (Des anyone think that Scalia and Thomas disagree on the merits of Prop 8)

If there had been a 6-3 decision that the Supreme Court DID have to decide then the next step would have been a decision with different votes.

For instance, Scalia would not have voted against Prop 8 as a law, even though he DID vote against deciding it.

So the idea that Sotamayor would have voted in favor of Prop 8 ON ITS MERITS if the court were to decide the case (rather than decline to decide anything) is kind of a slander.

[cthulu2016]

8. That was my impression during Oral

We cannot know for sure, but I think the ***new*** (hooray) equal protection finding in the DOMA case is a problem for things like Prop 8, even though the decision doesn't speak directly to things like Prop 8.

If Prop 8 was struck down on its merits then about 25-30 similar state laws would arguably have been struck down with it -- in practice if not directly. The language on Prop 8 would have been directly applicable to their laws.

I think Roberts did not want a decision, or to risk a decision, about STATE laws that actually would have all but legally same-sex in all 50 states.

If I was strongly against marriage equality I would have voted with Roberts and Scalia as a tactical vote.

And I am sure that Roberts and Scalia are very politically motivated and politically aware.

This question sums it up in my mind: Does Scalia have the integrity to cast the deciding vote to make it so gay people can marry in California tomorrow because it's legally right?

[Puzzledtraveller]

3. That's a good assessment

[HappyMe]

4. Couldn't you have let people enjoy the moment.

[William769]

5. Striking down DOMA for equal protection automatically struck down Prop 8

All the anti marriage amendments in the various States will be dropping like dead flies. It's done, it's over (at least on the marriage front).

[yardwork]

9. I don't think so. I wish that we're true.

All the state laws remain intact. There was no sweeping decision today.

[William769]

10. If it had been anything other than the equal protection clause, I would agree.

I'm looking at this like the Sodomy decision back in 2003. Unconstitutional is unconstitutional.

[yardwork]

12. I think it will take more struggles

Lots more court cases before equality is universal in the U.S.

[William769]

14. Equality yes.

I was only speaking of marriage. Or am I confused here?

[yardwork]

15. I meant marriage equality

Today's decisions don't change the constitutional amendment against marriage equality in NC or any of the other states except CA.

[William769]

16. All I can say is this

http://www.democraticunderground.com/1017127878

[yardwork]

17. Yes! And next we pass ENDA!

[cthulu2016]

13. It sets the stage for strong challenges of state law, but did not strike them down

[malthaussen]

7. Yup. But I'll settle for the unegged beer.

It would be nice if the whole idea of the individual states determining legality of marriage fell by the wayside, but that's not a likely scenario. This at least does nothing to check the growing momentum for equality in the USA.

-- Mal