At SCOTUSblog, Mark Lederman outlines the five options available to the Supreme Court over California Proposition 8:
- The Court can uphold the constitutionality of Proposition 8
- The Court could conclude that the Fourteenth Amendment categorically prohibits states from discriminating against same-sex couples in the conferral of marriage licenses–the so-called “fifty-state holding.”
- Without reaching the question whether a state could justify denying to same-sex couples substantial benefits and privileges that it offers to opposite-sex couples, the Court could conclude that once a state has offered same-sex couples all or virtually all of the incidents of marriage that it offers to similarly situated opposite-sex couples, there is no legitimate justification for denying those couples the status of “marriage” itself, and that therefore it is fair to conclude that such a denial is designed only to stigmatize, or to deny respect, on the basis of sexual orientation, which the Constitution forbids. This is the so-called “eight-state solution.”
- A California-only holding: The Court could hold, as did the court of appeals, that where a state has afforded same-sex couples all or virtually all of the incidents of marriage that it offers to similarly situated opposite-sex couples, and where that state has at one point allowed those same-sex couples the right to be married — a set of conditions that presently describes only the state of California — there is no constitutionally adequate justification for withdrawing that right from those same-sex couples. Such a holding would not require the Court to decide whether a state may more broadly discriminate in favor of opposite-sex couples, or even whether a state may in the first instance offer same-sex couples all of the same rights, privileges, etc., that opposite-sex couples enjoy, except for the status of marriage.
- The Court could dismiss the appeal on standing grounds, without (a majority) resolving the merits.
I am not even going to hazard a guess. I have no idea exactly how the justices could arrive at a majority on any one option. The only thing that I know to a reasonable certainty is that Scalia, and probably Thomas, will opt for door number 1.