America’s top legal journalist, Linda Greenhouse, in her NY Times online blog, argues that the marriage election results this year will bolster the DoMA challenges, even if the Supreme Court puts the challenge to the Prop 8 election result from 2008 on ice until next summer:
The most likely scenario to emerge from the [November 30] conference is a grant of review in one of the DOMA cases, most likely Windsor v. United States, decided last month by the federal appeals court in New York…
Assuming the court grants one of the DOMA cases, I think the justices are likely to put the Proposition 8 case on hold until the DOMA issue is decided. That could push any further development on the constitutionality of same-sex marriage – as opposed to the constitutionality of refusing to recognize those marriages that individual states have legalized – until next summer. It’s entirely possible that the court could just turn down the Proposition 8 appeal, which would allow same-sex marriage to resume in California without the Supreme Court’s involvement. Or it could decide the case, as the appeals court did, in a California-specific way that would not bind the rest of the country. The moment of reckoning, in other words, has not necessarily arrived yet.
I think there’s an excellent chance that the Supreme Court will overturn DOMA. The states-rights argument could appeal to those justices whom the equal protection argument leaves cold. There is obviously less reason for confidence – some would say little reason or none – on the deeper question, either in the pending case or in the near future.
But consider this: Proposition 8 was adopted by California voters four years ago by the narrow margin of 52.3 percent, after major mobilization by the religious right. If that referendum had been held not in 2008 but last week – on the day the religious right failed to work its will in Maine, Maryland, Minnesota or Washington – there is no chance it would have succeeded in the state of California. With nine states plus the District of Columbia now recognizing same-sex marriage, the intervening four years have made an enormous difference. Without the Supreme Court’s saying a word, the popular understanding of equality has evolved with near lightning speed and invested the constitutional guarantee of equal protection with new meaning…
When the history of how same-sex marriage became the law of the land is eventually written, as it will be in the not too distant future, there will be many turning points to mark. The Supreme Court’s 2003 decision in Lawrence v. Texas, which held that gay relationships could not be criminalized, will certainly be one landmark. But last week’s election results, when voters in four states had the choice to say yes or no to marriage equality and said yes in all four, will stand, I think, as the more important development. It didn’t necessarily tell the justices how to decide the cases now on their docket. But in showing them that times are changing, it told them a lot.