Would it be possible that Prop. 8 in California gets shot down however the remaining state laws (about 40) throughout the nation that define marriage between a man and a woman remain in tact?
That's probably one of the stronger likelihood. The 9th Circuit case was written following the blueprint of the Romer v. Evans
case -- which was authored by Kennedy. Most people expected the Ninth Circus to completely overrule the same-sex marriage ban. But, they didn't. They went with the Romer
rationale -- and many commentators have suggested that they did it for Kennedy's benefit.
Personally, I think Romer
can be distinguished.
Right now, I would put the odds as follows --
35% -- Kick it back because of standing issue (i.e., since Schwarzennegger and Brown, the Gov and AG of Calif. at the time, refused to defend it, no one has standing to argue the case in favor of the Prop 8).
35% -- Uphold State Constitution Ban.
25% -- Follow Romer
but just for California.
5% -- Completely disallow bans on gay marriage.
This post was edited on 3/25 at 2:29 pm