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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.
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