Of course, we will all be trying to read the tea leaves of what is said in oral argument by the Justices via their questions (almost statements). And of course, all eyes and ears will be on Justice Kennedy, the author of Lawrence v. Texas as he is expected to be the swing vote. Will the Court follow in the steps of Loving v. Virginia by reaffirming the fundamental right of marriage and thus striking down gay marriage bans across the nation? Or will the Court deal a staggering blow to the marriage equality movement by declaring that Proposition 8 is constitutional and there isn't a fundamental right for same sex couples to get married?
Or will the Court punt? In my honest opinion, I think they will punt (especially if Chief Justice Roberts is the author) and they will do so in one of three ways:
- They could declare that the Plaintiffs (the proponents of Proposition 8) do not have standing which would mean that the Ninth Circuit Courts narrow decision striking down Proposition 8 relying on Romer v. Evans.
- They could be California specific and ruling that Proposition 8 is unconstitutional based on Romer v. Evans while holding that the proponents of Proposition 8 do have standing.
- They could find that domestic partnerships (of which California has such a law) violates the 14th Amendment and thus those 9 states with domestic partnerships for same sex must allow for same sex marriage.
A hat tip to SCOTUSblog for their incredible coverage of the marriage equality cases and also a hats off to Chris Hays who, in his final show as the host of MSNBC's UP, had a full hour discussion on the marriage equality cases before the Court featuring Dan Savage. I am including those videos below.
*UPDATE* Tom Goldstein, over at SCOTUSblog, doesn't have a lot of good things to say about oral arguments today. Kind of scary.
*2ND UPDATE* The audio recording of today's arguments have been released and I am including them here.