In the wake of the oral argument SCOTUS Blog does not seem to share the confidence of my Examiner colleague Conn Carroll, that the Supreme Court will decide that the Constitution requires recognition of same-sex marriage. SCOTUSblog’s Tom Goldstein dwells on Justice Kennedy’s apparent reservations about every possible alternative and suggests that the Court may leave standing the Ninth Circuit decision, specific to California, that overturned Proposition 8, passed 52%-48% in November 2008, which purported to forbid same-sex marriage in that state. Lloyd Denniston also takes that view also and looks ahead to the case that will be argued tomorrow about the constitutionality of the Defense of Marriage Act.
It strikes me that there are or were political alternatives. Public opinion polling makes it clear that if California were to vote again on the issue, a majority would vote to overturn Proposition 8. Although some opponents of the measure blamed its passage on the Mormon Church, the reason it lost is that 70% of black voters voted for it. That’s not likely today, given the endorsement of same-sex marriage by the first black president. A recent poll shows a majority in Ohio for repeal of a similar ban. As for the Defense of Marriage Act, there are quite possibly enough votes in Congress today for repeal, which would certainly be signed by the president.