The decision to strike down Proposition 8 by a federal district court starts a process that will take this contentious issue towards a showdown at the Supreme Court.
The process has already begun with pro-Proposition 8 supporters appealing to the Ninth Circuit Court of Appeals. Here are the hypotheticals. If the Ninth Circuit Court lets Judge Walker's ruling stand, I am sure that the Supreme Court will have no choice but to grant certiorari as it falls directly under the Court’s original jurisdiction of states versus states. Currently, five states including the District of Columbia recognizes same-sex marriage while about half of the states in the union have provisions similar to Proposition 8 that bans same-sex marriage.
If it gets to the Supreme Court, and it decides to frame it as a civil rights issue, then this case will be classified under the minimum rationality standard - meaning that the government doesn't have to present overwhelming evidence to the Court to discriminate against same-sex couples. Thus, traditional marriage supporters should feel optimistic about their chances that the Supreme Court may rule in their favor. However, traditional marriage supporters' advocate on the government side (Obama's new Solicitor General, whoever that person maybe, now that Elena Kagan has assumed the bench) may not totally be one-hundred percent on their side. Why? - Because of Obama's position on the issue.
This is a quandary for the Obama administration whose middle-of-the-road position regarding same-sex marriage may get him into deep political hot water. President Obama is against Proposition 8, but he does not support same-sex "marriage", however, he is in favor of repealing Congress' Defense of Marriage Act (DOMA), which was passed by a majority Republican congress. Obama's walking a political tight rope with this issue fearing in alienating his base (pro-same-sex marriage supporters) while not losing the support of moderate to conservative independents (traditional marriage proponents) who helped him win in 2008. The bottom line is that the administration wants to make this a states' rights issue; however, looking towards the future, it has moved from the states to the federal courts and is inevitably now a federal issue.
A brief analysis at the current makeup of the court - five conservative and four liberal justices - indicates that the Court will rule in favor of traditional marriage; however, the swing vote in Justice Kennedy - a Sacramento native - is also known to side from time-to-time with the four liberal justices.
This is going to be a very interesting case if it gets to the Supreme Court whether it frames the issue under the 1st Amendment’s free exercise clause or the 14th Amendment's equal protection clause. In the former, the court may interpret the government, by expanding its definition of marriage to include same-sex couples, infringe on religious practice and freedom, thereby violating separation of church and state. Framing the issue this way would mean that it will rule in favor traditional marriage supporters. To frame it violating the 14th Amendment would make it a classic civil rights case. The Court could interpret the issue as violating same-sex couples' civil right to marry and thereby rule that they are not being protected equally under the law. This scenario will play well in favor of pro-same-sex marriage supporters.
Another scenario is that the court may narrow the scope of their opinion and rule in favor of states' rights, thereby upholding majority rule and Proposition 8. While this may reinforce the status quo, it will not make anyone happy nor will it make this issue go away as it will continue to prolong a violation of the Constitution's "full faith and credit clause" that requires states to recognize other state's official governmental documents. To rule in favor of states rights will mean that each state will continue to determine whether or not to recognize same-sex marriage. This would only prolong the matter rather than solving it.
The only answer is a clear and definitive opinion from the Supreme Court.
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