Mar 26, 2013

My prediction?

The Supreme Court will hear oral arguments today on the Constitutionality of California's Proposition 8,  which passed here on Election Day, 2008.  (The Supremes will also consider the Constitutionality of DOMA tomorrow.)

Most experts seem to believe that the soonest a decision could come down would be June.  There are a range of possibilities.  Prop 8 could be upheld, meaning that the Marriage Equality struggle would continue to be a state by state battle.  It could overturn Prop 8, but only have it apply to the state of California.  It could grant Marriage Equality to only the states that already have civil unions in place, or, it could thrash Prop 8 (and DOMA), saying that Marriage Equality is a constitutional right for the entire nation.

Everybody's eyes are on Justice Kennedy, naturally.  He being the Supreme Court Swing(er) Vote Nonpareil.  Though, there are other Supreme Courtniks, saying that Roberts and Ginsburg are in play, as well.  I do not much believe that Ginsburg is in doubt, personally.  But, Roberts might actually side with the good guys on this one (in a limited capacity.)

Justices Scalia, Thomas, and Alito are all firm No votes for Marriage Equality. We can bank that. We can also bank that Scalia and/or Alito will say or ask incredibly hateful things during the oral arguments, and that Thomas will say nothing, at all, preferring to do doodles on his legal pad.

Justices Sotomayor, Kagan, Ginsburg, and Breyer are all firm Yes votes for Marriage Equality in my book.

That leaves Kennedy and Roberts.

Generally on cases this big the Supremes prefer messy "cut the baby in half" decisions.  And, it would not surprise me if there were multiple opinions written for this decision. (Although, you can rest assured Thomas won't write one.) They are not fond of making sweeping declarative statements. (Unless they are electing presidents, or declaring corporate lucre as free speech.) As such, I find it unlikely that the good guys will get the decision we are ready for and deserve, that Marriage Equality is a Constitutional right.

My prediction?

Kennedy will vote with the bad guys, and Roberts the good.  They will overturn Prop 8, but for only California, meaning our struggle continues on.

It is a struggle that even its' opponents knows they are on the losing end of.  Marriage Equality opponents will not be able stem the tide in the end.

We are not there yet, but closer and closer, every day, we will be.

All my love,
Michael David Spitler

(serious h/t to Laura Clawson at dailykos.)

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