re: #69 Obdicut

That’s probably the path they’ll take if a plurality can’t come to an agreement. They’ll see whether the parties had standing to bring the suit - wait until a determination is made at the lower court levels, and then watch the cases simmer back up to the SCt at a later date.

If the liberal wing on the Court goes with this approach, it could be because they see that reactions to SSM has moderated and become accepted more and more - the trend is in their favor.

If the conservative wing goes with this approach, it could be to avoid having to make a decision that would restrict rights.

They might both agree to punt this down the road, to a point in time when the political makeup on the Court differs, or when views nationally shift even more towards acceptance of SSM.

re: #70 Holidays are Family Fun Time

The first case - the Prop 8 measure was one where voters may have overriden Constitutional Equal Protection rights of SS couples.

The second of the cases - the one dealing with federal benefits being denied to SS couples would also have Equal Protection as part of the argument.

So, in other words - there would be sufficient constitutional authority to uphold SSM in both measures. The only way to say that they aren’t entitled to those rights is to narrowly find that the law or actions by the parties wasn’t valid by some other reason (standing to sue for instance). The other possibility is that someone like Scalia or Thomas would claim that there’s no right because it’s not in the plain language of the Constitution nor is there anything like this that was intended by the Founders (originalism/literalism-based arguments).