The Harvard Law School website has an interview with Professor Larry Tribe with his predictions about what the Supreme Court is most likely to do in the two pending gay marriage cases:
[M]y hunch – and it is only that – is that the Court will narrowly conclude that the DOMA [Defense of Marriage Act] issue is properly before SCOTUS on the merits … and that the Court will hold DOMA’s Sec. 3 unconstitutional by a vote of 5-4, with Justice Kennedy relying heavily on the kinds of federalism considerations that Judge Boudin found persuasive in CA1 [U.S. Court of Appeals for the First Circuit] but with the more liberal four justices relying squarely on the equality component of fifth amendment due process.
As to Hollingsworth, however, I doubt that the Court will conclude that Chuck Cooper and the other private proponents of Prop 8, all lacking a fiduciary duty to California, have Art. III standing to defend it on the merits in the Supreme Court (despite what the state’s highest court concluded) and will dismiss that case on standing grounds, leaving in place Judge Walker’s statewide injunction against Prop 8 but setting no nationwide precedent. Alternatively, despite the Rule of Four, I wouldn’t be too surprised to see the Court dismiss cert as improvidently granted, leaving CA9’s [U.S. Court of Appeals for the Ninth Circuit] decision in place but again setting no nationwide precedent.
I believe that it is entirely appropriate, in the extraordinary circumstances presented both by DOMA and by Prop 8, for the executive branch, state or federal, to enforce the laws at issue until struck down by SCOTUS but to decline to defend those laws on the constitutional merits. I do nonetheless think that California should have made provision for some suitable official defense of Prop 8 in those circumstances in order to preserve the integrity of its initiative process and that the Obama administration should have arranged for the appointment of a special counsel, akin to the independent counsels appointed on earlier occasions, to defend Sec. 3 of DOMA in the federal courts once the President concluded that the Attorney General and Solicitor General should not do so…