Predict how SCOTUS rules on gay marriage

[politicallefty]

I think the judiciary should limit itself to upholding the most clear-cut, unquestionable or reasonably consensual interpretations of the Constitution, and defer to the legislature whenever a more ambiguous case arises. Otherwise, we are effectively surrendering all our decisional power to the personal beliefs of five old men in robes.

Who decides what is "clear-cut and unquestionable" when it comes to constitutional interpretation? Both sides of any particular issue would believe their side to be the reasonable side.

When it comes to the topic, I really don't know what the Court will do. (At the very least, I don't see Prop 8 surviving.) I hope it goes for the last option and establishes marriage equality in all 50 states. There's certainly a possibility that this could happen, but I can't say what the odds would be. Personally, that seems to be the most consistent option with current precedent and the Fourteenth Amendment. It's not even necessary to look at marriage discrimination as discriminating on the basis of sexual orientation, but rather sex discrimination instead. Such a classification would raise the standard to intermediate scrutiny. I don't argue that the state has to recognize marriage. However, so long as it is granted to opposite-sex couples, it must also be granted to same-sex couples in order to be constitutionally permissible. It is discriminatory to deny an individual the right to marry the person they so choose on the basis of sex, let alone on the basis of sexual orientation. That's not to say I think gay marriage bans satisfy even rational basis. However, I do believe the standard of review should be higher, just as Olson and Boies argue in their brief.

[politicallefty]

Like most, I also think DOMA is going to fall. I'm not sure that there will be a majority on any particular line of reasoning, though there is a limited possibility a majority strikes it down on equal protection grounds. Justice Kennedy could limit it to DOMA and let a lower court ruling on Prop 8 stand. That could delay by a couple years any SCOTUS decision on gay marriage as the issue would have to start from the beginning at the district court level (with a state or states without California's unique situation).

After listening to the oral arguments in both cases, I think it's extremely unlikely the Court rules anything other than options 4 or 5 (the former being much more likely than the latter). Therefore, my vote goes to option 4. I believe Prop 8 will soon be completely unenforceable, whether it happens on the merits or the standing issue. And, as I said above, Section 3 of DOMA looks to be dead as well.

One thing I did notice was this brief insight in Justice Kennedy's thinking:

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It's not a line of reasoning that has really got much attention at all, but it would raise the standard of review to intermediate scrutiny. There's no way a gay marriage ban would survive that standard.

[politicallefty]

Section 3 of DOMA is the issue before the Court. That is what deals with the federal definition of marriage. I don't see how any constitutional challenge to Section 2 could survive unless the Court recognizes a right to gay marriage within the Constitution. Under current jurisprudence, Section 2 is a valid exercise of Congress's power under the Full Faith and Credit Clause.