Prop 8 stands?
1. The Supreme Court today ruled in its opinion holding DOMA unconstitutional that the states are entitled to decide their own marriage laws. Assume this is not a meaningless statement – a “bald, unreasoned disclaimer,” as Justice Scalia called it. (This may be asking much of those who recall the majority opinion author’s prior work in Lawrence and Romer, rich with such disclaimers.)
2. President Obama also acknowledged today that Americans’ views on marriage are based on “deeply held beliefs,” i.e., not animus. Recall that the challenge to Prop 8, California’s traditional marriage law, which challenge was also decided today, concerned whether to uphold the trial court’s ruling that that law could only be explained by “animus,” i.e., not deeply held beliefs.
3. The Supreme Court also held today there was no standing in the Prop 8 challenge because of the fact that California’s then-AG (Jerry Brown) and present Governor (id.) refused to defend it. Lacking the requisite “case” or “controversy,” judicial power could not legitimately be exercised in that case.
In light of (1) the Court’s ruling on DOMA, (2) the president’s statement, and (3) the Court’s finding of no legitimate Article III authority to decide the Prop 8 challenge and thus no ruling on its merits – does Prop 8 stand? Or is President Obama wrong about deeply held beliefs and the Court wrong about states getting to decide their own marriage laws?
Logically, exactly one of those two questions must be answered in the affirmative. The President and the Supreme Court can’t both be wrong, can they?