SCOTUSblog's Initial Analysis: Court Won't Uphold or Strike Down Prop. 8 and It Will Remain invalid
SCOTUSblog's Tom Goldstein writes that the Justices seriously doubt that the petitioners have "standing" (Ari talked about that in his preview HERE):
Goldstein says the Court seemed divided on the constitutionality of Prop 8 along ideological lines with Kennedy as the swinger and it is unclear how broadly the left side of the Court will rule.
Kennedy (pictured), as the swing vote, was cautious:
He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new. He also noted the doubts about the petitioners’ standing. So his suggestion was that the case should be dismissed.
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.
We'll have analysis from our legal editor Ari Ezra Waldman as soon as possible after the transcripts are released within the next hour or so. Please stay tuned here and make sure not to miss a Towleroad headline by following @TLRD on Twitter.