What if the Court Punts?
Kevin Drum wonders about whether the Court might toss the Prop 8 suit on a technicality or a lack-of-standing issue:
Technically, there's an argument to be made that backers of Prop 8 don't have proper standing to sue in this case. And it's easy to say that this would be a fine example of conservatives being hoist by their own petard, since, as Erwin Chemerinsky has pointed out, they're the ones who have been so eager in the past to deny standing in cases involving civil rights, environmental protection, and the separation of church and state.
But this is a case in which lack of standing is purely artificial. The state of California, which would normally be on the hook to defend its own laws, has declined to do so. This decision means that a properly enacted constitutional amendment literally can't be defended in court, and that's just wrong. Like it or not, half the state voted for Prop 8, and one way or another, their interests deserve their day in court.
He has a point there. In this particular case, this would work out kind of well, presumably--same-sex couple in California would presumably be permitted to start getting married again, depending on how the decision was written, and pro-Prop 8 people would have to scrounge around for a litigant who does have standing. So that would be great. But it wouldn't settle anything beyond California.
It sounds like no one got any firm clues in one direction or the other from the orals. But aren't the conservatives on really dubious ground with their argument that the state's interest in "responsible procreation" is vital?
Lots of straights don't procreate. Lots of gays do. No one can be forced to, obviously, since some people scientifically can't. And no amount of married same-sexers can remotely be seen as threatening to those heteros who do wish to procreate. It's a pretty offensive argument, the more you think about it. Bestowing a right on Group B that's already held by Group A does nothing to harm Group A--unless you think there's something inherently toxic about Group B.