I love how the guy says "Plenty of privacy out here" with someone else's balcony in the background.

Will be interesting.

Because of the narrow scope of the decision as written by the previous courts, the S.C. could uphold the ruling (i.e., Prop 8 remains overturned) without setting precedent for the larger national gay marriage picture. But they could choose to rule on the larger issue. So there are a lot of possible outcomes:

A. Prop 8 remains overturned, but the constitutionality of other states' bans (and possible future bans in California) remains unchallenged ("The process that got Prop 8 passed does not fly in California, therefore the prop is overturned. Matter of California legislative rules, not the gay marriage")

B. Prop 8 remains overturned and other bans are rule unconstitutional ("Forget the proposition process, equal rights is equal rights, prop 9 is unconstitutional on its face")

C. Prop 8 is un-overturned (?), and all state-level bans are considered constitutional. ("The process in California was kosher, and we find that the proposition passes constitutional muster, you have our blessing to go ahead and discriminate")

D. (can this happen? not sure). Prop 8 is un-overturned, but the ruling doesn't address whether the ban is constitutional leaving Prop 8 and other states' bans in effect, but challengeable. I suppose it's possible, right? If they basically say, "The issue here is whether the process of passing prop 8 was kosher in terms of Callifornia law. We rule that it was kosher, therefore that's not grounds to have overturned the prop. But whether the prop itself is Constitutional is not at question. That would have to be brought back to the court through another challenge."

Right?

I think we have to consider the strategy of the conference process, convoluted and extended in this case, where SCOTUS decides what cases to take. There were several DOMA cases to choose from, the Prop 8 case, and also an Arizona case about discrimination against state employees on the basis of sexual orientation.

Kagen would have potentially have had to recuse herself if the Gill DOMA case was chosen, but she doesn't have to on the Windsor case that was selected. That was under consideration. As was, most importantly to the point I'm about to make, whether there's any point to take a particular case of the 6 on the table. There needs to be at least 4 votes to take any case.


So what I submit is there's no strategic point in taking up the Prop 8 case if the outlook was there's not enough votes to overturn Prop 8. The justices know where their colleagues stand on this issue. It's not widely thought there are 4 votes to uphold Prop 8 - but even if there were, there's nothing to be gained from taking the case merely to uphold it.

In that unlikely event, equal marriage would still exist in 9 states. SCOTUS is almost certain to overturn DOMA, so those states would have full federal marriage rights for same-sex couples. Even California would be able to overturn Prop 8 at a future election. There's just no positive outcome available for ultra-conservative justices on the Supreme Court. Even if it's determined by SCOTUS there is no constitutional right to equal marriage, that won't stop it at all. With DOMA overturned, any gay couple in America could travel to a state that allows gay marriage, and on return home to their backwards state that marriage would be recognized by the federal government.

So strategically, I think the Supreme Court just indicated confidence they will overturn Prop 8 at the least, and possibly even find a constitutional right to equal marriage under the 14th Amendment. (Remember, in taking the case, SCOTUS is in no way limited to the narrow findings of the Ninth Circuit Court of Appeals that the constitutional issue is not reached for determination, because taking away existing rights - applicable only to California - is a no-go from the get-go. No, the Supreme Court can revisit the federal district court's ruling that Prop 8 violates the due process and equal protection provisions of the U.S. Constitution, or consider any other damn thing they please.)

Ironically, the only down-side indicated by SCOTUS conference strategy in taking the case is they left open the standing issue of the Prop 8 proponents to have even appealed the district court judgment. The Supremes may want to put a kibosh on that kind of thing (technically the Prop 8 proponents are unlikely to have Article III standing). So even though the case was delayed an entire year while the California Supreme Court addressed the standing issue posed to them by the Ninth Circuit, the U.S. Supreme Court could still overturn that - and may indeed want to - leaving us with gay marriage legal in California and - again - with DOMA overturned, all such marriages recognized by the federal government.


In short, I just don't see any downside to the decision to take up the Prop 8 case. More delay certainly - but not much to lose, and so very much to perhaps be gained.

The USSC also will be addressing the backers of Prop 8 had standing to pursue the appeal that resulted in the 9th circuit opionion.

If they say no, I'm not clear on what happens. Is it just that they didn't have standing to appeal? In which the District Court ruling stands but has no weight as precedent?

Or would it mean they didn't have standing to defend Prop 8 at the original trial and the District Court ruling is tossed and has to be repeated (with, once again, the state having no interest in defending it and perhaps no other entity with standing)?

It doesn't go back to the trial level. The district court had legitimate authority to allow the Prop 8 proponents to intervene as plaintiffs. What's at issue is whether the Ninth Circuit and the California Supreme Court got it right when granting those same Prop 8 proponents standing to press an appeal when the state refused to do so, and also whether they meet the other standards for Article III standing TO APPEAL that neither the 9th or the California Supremes even addressed.

Interestingly, there's a similar stated question on the SCOTUS order accepting the Windsor DOMA case. Does the House of Representatives have standing to defend DOMA when the justice department refuses to? In this instance, I believe the law is clear it does. But it seems the conference strategy was to give SCOTUS an opt-out option on both hot-button cases. I don't expect them to take either easy out. Again, because then Why Bother to Take the Cases?

I'm not knowledgeable enough to know either way, but in the discussion over at ScotusBlog there seemed to be reasonable arguments that there scenarios that would kick all the way back to trial.

But I like your outcomes so I'll take those as a given until the Supreme Court decides to go all Citizens United on our asses again.

I failed to mention that the LDS church has launched a new website that teaches compassion for those afflicted with teh gay, but is really (to me) a stepping stone for just another change in doctrine, despite the "God doesn't change" outlook they're speaking of now. They've radically changed their opinion before; why not now?

http://www.mormonsandgays.org/

I call shenanigans on that. They want to urge teh fags to stay in the fold, as long as they don't fold in half and take it up the a$$. In other words, homo is ok as long as no homo really happens. Suppress your sexual urges forever and remain celibate, and you can remain a Mormon. Oh, yeah, ignore all that stuff about how Mormons can only have that after-life planetary existence if they marry and have kids. But you're all good for this lesser, earthly life of suppressing your sexuality and living loveless. Enjoy!

I'm assuming that Mormon, Sand, Gays is a all-inclusive Caribbean resort?

As for the tone, it is of course shenanigans but a pretty standard "hate the sin, not the sinner" religious position.