For explication of today’s oral arguments on Prop 8, you could do worse than SCOTUS blog. Tom Goldstein at the aforementioned site believes that the Prop 8 case will ultimately be dismissed because enough justices are convinced the petitioners defending the proposition lack the legal standing to appeal a district court’s ruling. That will result in a modest, but not major, victory for marriage equality:
If those features of the oral argument hold up – and I think they will – then the Court’s ruling will take one of two forms. First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing. That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8. Another case with different petitioners (perhaps a government official who did not want to administer a same-sex marriage) could come to the Supreme Court within two to three years, if the Justices were willing to hear it.
Second, the Court may dismiss the case because of an inability to reach a majority. Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him. Others on the left may agree. That ruling would leave in place the Ninth Circuit’s decision.
For my part, I think that’s what’s going to happen as well. Kennedy just sounds like he’s not ready to move forward one way or another, and so Roberts and the four more liberal justices (and possibly Kennedy) will probably punt. That means, in all likelihood, the ruling with more far-reaching potential should come from the DOMA case, whose oral arguments will be heard tomorrow.
