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The Court’s five options in the California marriage case

For those of you invested in the outcome of Hollingsworth v. Perry, the Supreme Court case on the constitutionality of Prop 8, this is a great breakdown of the different ways the court might decide. There are five major options:

1) SC upholds constitutionality of Prop 8 (aka marriage equality in CA not granted)

2) SC finds the inability of same-sex couples to marry in forty-one states a violation of the 14th Amendment, effectively legalizing same-sex marriage on a federal level

3) SC finds that there is no rational basis (the lowest level of judicial scrutiny) for denying marriage rights to same-sex couples in states where same-sex couples have all the legal rights of marriage except the name itself. This would apply to eight states: California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island. 

4) SC finds that it is a constitutional violation to retract rights afforded to same-sex couples once offered; in the case of this finding marriage equality would be extended to California, since that state has a unique set of conditions.

5) SC dismisses the appeal on standing grounds (i.e. one or both parties petitioning have no recourse to have the case decided at the SC level). 

For what it’s worth, I’d place the likelihood of outcomes in this order: 3, 4, 2, 5, 1. I’m optimistic about Perry, largely because Justice Kennedy—the swing vote for social issues on the Court—is fairly libertarian, and has a good record on 14th Amendment issues. (See his majority opinion in Lawrence v. Texas, which legalized sodomy in 2003.) All the same, though, I think this Court is going to make a fairly narrow decision; I don’t see a sweeping victory for marriage equality in the cards. I could be wrong, though—there’s always the chance that public opinion is persuasive enough to make Kennedy believe a sweeping fifty-state solution is required. We’ll see!