If this court can uphold the healthcare law, then I'm confident about same-sex marriage.
But they didn't, not really.
Roberts, in my view, gave Obama the worst possible outcome.
First, he could have struck it down. What happens then? Obama goes to the people, points out that he needs a Democratic majority in the House (and a Senate supermajority) to get all the goodies promised in the bill, then he gets it and passes the thing again with a few minor changes--not the same law, thing gets re-litigated, possibly after Scalia or Thomas passes away.
Second, he could have found it constitutional under the Commerce Clause. This would have given the federal government a lot of power to enforce it--for instance, the federally subsidised plans are (AFAIK) only available through the state exchanges, and so if a state chooses not to set one up its citizens can't get those plans. If the federal government has Commerce Clause authority, they can do a lot, plus it would mean that Commerce extends to individual mandates.
But he did neither of these things. He found it constitutional under the Taxation Clause. That means that there's little incentive for the government to tinker to try to get it to be constitutional under Commerce--they might just strike it down outright next time--but that they can't do much if a state chooses not to set up an exchange, meaning all its citizens have to get expensive private plans or pay a
tax.
So basically the government is stuck being seen as taxing people and can't do much to get the states to do what the feds want, so the states can turn around and blame the federal government for that new tax you've got to pay.
The Progressive has a nice article on why the Supreme Court will legalize same-sex marriage. Worth the read.
I dispute points 4 and 5 in this article.
For point 4, I've noted my objections above--Kennedy did write
Romer and
Lawrence, but that's because Stevens, as senior associate justice, let him write them. Rehnquist probably would have given them to Scalia, leaving Kennedy with the choice of writing the majority opinion or signing onto Scalia's.
For point 5, see above. Roberts didn't let the health-care law prevail the way the federal government wanted it to prevail. He gave them a Pyrrhic victory.
