Conservatives got the best Prop 8 Decision they could get, which was still a loss (Hooray) [View all]

[cthulu2016]

Some comments took this as a downer post. It is not! It is a post about the 'inside baseball' type reasons that proably, in my guess/analysis, led to the peculiarity of Roberts and Scalia voting in a way the will have gay people getting married in California tomorrow, with gay-friendly Kennedy voting the other way. It's about court manuvering, and the Roberts stamp/philosophy, not who won or lost. We won. Big time.

If the Prop 8 decision on whether the issue was properly before the court to begin with had gone the other way (that it WAS properly before the court) then the Prop 8 question would have been decided on it merits, probably another 5-4 decision striking down Prop 8 as discriminatory.

Two decisions on the same day decided on the same equal protection grounds would have been an even stronger statement.

So the decision that the Prop 8 challenge lacked standing was the best the RW could have hoped for, in context. Either way, same sex marriage would be restored to legality in California, so the only turf left to protect was preventing a Prop 8 decision on its merits that applied to ALL the states.

Thus not deciding the case was better than losing the case, and a RWer given that narrow choice would decide to punt rather than take a beating.

The justices were split on a non-idealogical legal question (standing) with Scalia and Thomas on different sides. (Rare) Kennedy, who WROTE the DOMA decision and is obviously gay-friendly, was on the "losing" side in the Prop 8 decision... but I think that Kennedy would have struck down Prop 8 if it had to be decided by the court.

And justices know that stuff. They know 99% of the time what all the other justices think. They circulate writing about the cases through the court for months. Even if WE don't know for sure, Roberts had a 99% sense of how Kennedy would vote... if he had to, despite personally thinking the case lacked standing.

(If the court had voted 6-3 that the case had standing then everyone would vote again on the merits -- whether to strike down prop 8 or not. Those two votes would have had no connection to each other.)

With the court split on the standing question (which had nothing to do with whether Pro8 8 is constitutional or not), Roberts voted in the way that would prevent a second ground-breaking pro-gay ruling on the same day.

That's my guess.

(The alternate analysis is that the court would have upheld Prop 8, and that even knowing that, the reason gay people can now marry in California is because Scalia is so principled. I find my analysis more plausible than that.)