Assume that the Supreme Court were to decline to reach the merits of Prop 8 on the grounds that the parties defending the same-sex marriage ban lack proper standing — what’s the practical effect?
Here’s how Tom Goldstein at SCOTUSblog assesses it:
If those features of the oral argument hold up – and I think they will – then the Court’s ruling will take one of two forms. First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing. That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8. …
Second, the Court may dismiss the case because of an inability to reach a majority. Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him. Others on the left may agree. That ruling would leave in place the Ninth Circuit’s decision.
The upshot of either scenario is a modest step forward for gay rights advocates, but not a dramatic one.
