After reading about yesterday's arguments, I really think the Court will "punt" on Prop 8 by saying the plaintiff's don't have standing.
Has anyone made a running count of how people forgot about the 14th amendment to the constitution?
Discriminatory policies can be constitutional if it fits within the standards. There's 3 standards - strict scrutiny, intermediate/heightened scrutiny, and rational basis. With the first two, the policy is considered unconstitutional unless the government can show there is a compelling (strict) or important (intermediate) government interest and the policy furthers that interest. Under rational basis, a policy is considered constitutional unless the people bringing the suit can show there is no rational reason for the policy. That is a VERY low standard, so policies challenged under a rational basis are usually upheld.
There's only a short list of issues that qualify for strict or intermediate scrutiny - race, nationality, gender are the 3 most common ones. Sexual orientation has not yet been qualified for either of those levels, which means policies that discriminate based on sexual orientation are reviewed under a rational basis. (There is some language in
Lawrence v. Texas that indicates intermediate scrutiny, but it's very vague.)
All of that said, one of the justices (can't remember which one. Sotomayor I think) asked the lawyer arguing for Prop 8 if he had a rational reason for the policy and he said no. So clearly, Prop 8 fails even rational basis.
I'm actually more interested in how today's DOMA arguments go. Prop 8 was an outside shot to get same-sex marriage legalized nationwide. If DOMA goes down, however, that opens the door to a clear shot - a la
Loving v. Virginia.
