Friday they announced they were going to hear two cases relating to DOMA; and with that the possibility of Same Sex Marriage being federally recognised was possible. As with DADT, having a Circuit overturn DOMA would, effectively, mean it was dead from coast to coast.
But they also announced that at present, there is no one with standing to appeal Prop 8 to them. They made a similar statement in regards to the BLAG (the group the House appointed to stand in for the DoJ, when the Obama Administration did was Gov. Brown did in Calif, and said he wouldn’t defend Prop. 8).
It looks as if that’s a way to duck the question. If they decide the 9th Circuit erred in accepting the Calif. Supreme Court’s ruling that the proponents of Prop. 8 had standing to defend the law the probable result will be to nullify the 9th Circuit’s decision. At which point District Court’s ruling will stand, and the questions of Prop. 8 don’t get any wider than the bounds of Calif.
The other case (coming from the 2nd District) is more far reaching. In that decision the Court held that sexual orientation was in the same category as race. Under the standards of scrutiny that requires, DOMA can’t survive.
There is also (not up for review by the SCOTUS) a ruling out of the 1st Circuit that DOMA is something which requires, “closer than usual scrutiny”, since it’s a law which interferes with something traditionally in the purview of the individual states.
BLAG is a bigger problem: The House is acting in two capacities which are somewhat out of step with US practice. In the first they are acting in a unilateral way; leaving the Senate out of the equation. In the second they are usurping an executive power (that of enforcing the laws). Yes, the Executive ought to enforce all the laws, but there is precedent for it not too. Andrew Jackson, when told his displacement of the Cherokee was unconstitutional is purported to have said, “Mr. Marshall has made his ruling, now let him enforce it,” and proceeded to do just as he had been doing.
More to the point, when Reagan wanted to fun the Contras in Nicaragua, Congress passed the Boland Amendment, specifically prohibiting him If Congress, as whole, wants to make the president enforce DOMA, they could do just that; pass a law ordering him to do it. If he violated it they could then do what they refused to do when Reagan violated Boland, and impeach him.
If I had to guess at what Scalia, et alia will do, it’s to make rulings which nullify the 9th Circuit ruling on Prop. 8 (and so revert to the much more limited District Court holding) and uphold Perry (the case out of the 2nd District), because the court is still fairly right of center, and a grant of States’ Rights is in keeping with the activist philosophies of those judges. it will be interesting to see, should standing be granted to both, how Scalia will rule; given the nonsense he’s been spouting about outlawing homosexual behavior; and his opinion in Lawrence v Texas. He would, I think, like to uphold DOMA, and would also like to extend the power of the States’ Rights factions (esp. in light of his views on abortion).