Gay Marriage: All of Today's Possible Scenarios in One Handy Chart


Exactly as I predicted, the Supreme Court declined to rule on the Proposition 8 case, declaring that the proposition’s original authors had no “standing” (no legal right) to argue on behalf of the State of California. Additionally they voided the earlier Ninth Circuit ruling against Proposition 8 for the same reason — which means that a long-ago preliminary decision by a single judge, Vaughn Walker, will prove to be the final word on the issue. Since Walker made the (in my opinion) bizarre ruling that Proposition 8 was invalid because the voters who passed it had the wrong motivations for wanting to define marriage, that means the proposition is voided and cannot be enforced. (Read the official Supreme Court ruling here [pdf].)


The argument is still not necessarily settled, however; some analysts claim that Vaughn’s ruling only applied to the two individual petitioners who challenged Prop 8, and since it was not a class action suit it had no bearing on the rest of California residents. The legal tussle is likely to continue — although since no one seems to have legal standing to defend a constitutional amendment approved by 53% of voters (how can that be???), it’s unclear who will be able to represent Prop 8 in any future hearings.

In any event, the ruling has no effect on any of the other 49 states, so the nationwide debate over gay marriage will continue.


I agree with Ed Morrissey’s analysis:

This decision bothers me a lot more than the DOMA case. The voters in California amended the state constitution by referendum legally, to define a legitimate government policy regarding the recognition of marriage. The court is making the case that this is a matter for California to settle, not the federal courts, and there is a very good case to make there. However, the effect of this is to overturn an election whose legality was never in doubt just because some people didn’t like the outcome. That to me is a more dangerous outcome than a precedent-setting decision on standing.

(Original post below.)

Today, June 26, is Gay-marriage-pocalypse Day for the United States and American culture. Depending on how one or two cranky Supreme Court justices feel, starting today America will either be transformed into the most progressive and transgressive forward-looking nation in history, or will descend into an endless nightmare of fascistic medieval hate.


(If you detect the whiff of sarcasm, you must be mistaken.)

Many (actually, most) people are confused about what might happen, but luckily the folks at The American Foundation for Equal Rights have produced an extremely well-designed handy-dandy infographic outlining all potential outcomes of today’s Supreme Court ruling.

Below, please find your scorecard for today’s cultural armageddon

In case it needs any clarification, here’s a quick explanation:

The court could issue any of three basic rulings:

● They could STRIKE DOWN California’s Proposition 8 (which banned gay marriage in the state).

● They could punt and DECLINE TO RULE.

● Or they could UPHOLD it.

(Click image to view full-size:)

If they STRIKE DOWN Prop 8, it could be on the basis of three different possible legal grounds:

● They could rule that ALL marriage bans of any kind in any state are unconstitutional, which would be a total and history-changing victory for the pro-gay-marriage side;

● They could rule that the existing muddled compromises known as “civil unions” and “domestic partnerships” are essentially bogus and must be upgraded to full marriage status — which would affirm gay marriage in the 12 states that already have it and upgrade “civil unions” to full marriage in the 7 states that currently have the compromise (while the remaining 31 states would still have no gay marriage, at least for now).

● They could limit their decision to the technicality that, due to an earlier judicial ruling, California very briefly had legal gay marriage before this newly established right was unfairly “taken away” by popular vote through Prop 8 — which would restrict the Supreme Court’s decision’s effect solely to the state of California.


If they DECLINE TO RULE; then there are two potential rationales for the decision, both of which are based on legal technicalities:

● They could decide that the traditional-marriage advocacy groups defending Prop 8 in court (because Governor Jerry Brown refused to do so) had no “legal standing” in the case, and thus they lose by default — but this would have no relevancy outside the state of California, which would “regain” gay marriage;

● They could admit that the Supreme Court just made a boo-boo in even looking at the case in the first place, refuse to make any decision at all, in which instance an earlier lower-court ruling, which tossed out Prop 8, would remain in force — but once again which would only apply to California.

And finally if they UPHOLD Proposition 8, the only conceivable legal rationale would be that:

● States retain “states’ rights” according to the Tenth Amendment in those issues over which the Federal government has no valid interest — and the court would essentially be ruling that the Feds must stay out of the “definition of marriage” game, leaving each state to decide as it chooses. In this case, the other 11 states with gay marriage would be able to keep their laws, but the 39 states (including California) which have decided to retain opposite-gender-only “traditional marriage” would be able to keep their own laws (or change them later if they see fit).



My prediction? It’s right after the page break.

So far this season, the Supreme Court has been in a punting mood, as most decisions have essentially “split the difference,” neither striking down nor definitively upholding any particular issue, but instead tinkering with legal niceties and inscrutable details (see their Affirmative Action and Voting Rights Act decisions for the most noteworthy examples of this attitude).

As a result, I predict that the Supreme Court will punt on gay marriage as well, and will either DECLINE TO RULE or possibly STRIKE DOWN Prop 8 but only on limited technical grounds that solely affect California.

I’d be pretty surprised if they went to one or the other extremes — force all 50 states to accept gay marriage; or alternately rule that the Feds have no basis to define marriage at all — which will be pretty disappointing for people on both sides of the aisle who want the argument to just finally be over (with their side winning conclusively, of course).

San Francisco already has a Gay-marriage-pocalypse Day official event set up for today, which will either turn into a wild ecstatic street party if the ruling goes their way, an angry riot if the ruling goes against them, or a confused half-satisfied but half-disappointed anti-climax if, as I predict, the Supreme Court takes the middle path.

What is your prediction — and what is your preferred outcome?



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