Many commentators believe that the oral argument in the Prop 8 case before the U.S. Supreme Court last week suggests that the Court will "decide not to decide," holding instead that it lacks standing, thus leaving intact the lower court decision reversing the California ban on same-sex marriage. John Bursch, Michigan's solicitor general, disagrees. Writing as a SCOTUSBlog guest, Bursch predicts that the Court will uphold the ban but instead toss out DOMA, the second same-sex marriage case, on federalism grounds. Bursch points out several exchanges in the DOMA oral arguments that suggest a win for the DOMA challenge, but says that the Prop 8 case will go the way his amicus brief urged that it go:
Justice Kennedy’s comments about state power to regulate marriage – calling it “the essence of the State police power” – provide further evidence that he intends to uphold Proposition 8. Acting as the swing vote in both cases, Justice Kennedy seems likely to leave it to the People and their elected representatives to decide what “marriage” means. Given recent trends in the polls, this may be of small comfort to supporters of traditional marriage. But such a pair of decisions would not constitutionalize same-sex marriage, which would also be disappointing to same-sex-marriage advocates.
For yet another view of where the Supreme Court might go in DOMA, don't miss Jason Mazzone's Balkinization post urging that the Court "go small:"
Here, then, is the small issue the Court should decide in United States v. Windsor: Does Congress’s limitation of the inheritance tax exemption provision to opposite-sex married couples comply with the equal protection principles of the Fifth Amendment? No need in answering that question to enter the vast federalism minefield. No need to decide a giant equal protection question that implicates more than one thousand federal statutes as well as myriad state law questions (including, yes, marriage itself).
The Court in Windsor should do what it always does: decide one case at a time. This case, this time, presents an issue of the constitutionality of the federal law of inheritance tax.
