In less than a week the Supreme Court will hear a pair of cases involving same-sex marriage. Since Chief Justice John Roberts made his unprincipled switch to rescue Obamacare, I have given up on predicting Supreme Court outcomes. If the justices are going to be unmoored to logical argument and careen from one position to another depending on their perceived need to defend the court’s historical reputation, far be it from me to figure out where they will land. (At least the liberal justices are entirely predictable.) In other words, I have no idea how the justices will rule or on what basis (10th Amendment, 14th Amendment?).
Let’s, however, consider what would flow from various rulings. I will focus on the clearer Defense of Marriage Act case, understanding that the California Prop. 8 case may be decided on narrower grounds that are not especially relevant to other cases.
Suppose the court decides DOMA is unconstitutional on 14th Amendment grounds, that marriage is a “fundamental right” (it has so ruled many times) and that neither the states nor the feds can bar same sex marriage. Not unlike in abortion cases, the losing side will be aggrieved, claim judicial tyranny and vow to overturn the ruling. But for all intents and purposes, the issue will be over (aside from futile efforts to pass a constitutional amendment); social conservatives will have been roundly punished for trying to federalize marriage in the first place.