Both of you are living in denial. Or at least going on wishful thinking. Where do you get the idea that more people in this country are for gay marriage than against it? Heck, the whole reason the Supreme Court is hearing the DOMA case right now is because supporters of gay marriage know they can't win the day in most states.
Well no one really knows why the Supreme Court decided to hear the challenge to proposition 8 and the DOMA case. We won't know for sure for years. But the available evidence suggests that the four most conservative justices decided to hear the Prop 8 case while the DOMA case was probably going to be heard no matter what as two lower courts had invalidated it.
They then confronted a second, much more ambitious case, Hollingsworth v. Perry, No. 12-144, concerning whether the Constitution guarantees a right to same-sex marriage. Most observers thought the court would hold the case while it worked through one on the 1996 law, and some thought it might deny review, letting stand an appeals court decision that had struck down Proposition 8.
Instead, the court granted review in the case. That was a surprise and a puzzle. Who had voted to hear it? One school of thought was that the court’s four liberals were ready to try to capture Justice Kennedy’s decisive vote to establish a right to same-sex marriage around the nation.
That theory was demolished in the courtroom as one liberal justice after another sought to find a way to avoid providing an answer to the central question in the case. The decision to hear the case, it turned out, had come from the other side.
Justice Scalia, almost certainly joined by Justices Clarence Thomas and Samuel A. Alito Jr., apparently made a twofold calculation: that their odds of winning would not improve as same-sex marriage grows more popular and more commonplace, and that Justice Kennedy, who is likely to write the decision in the case concerning the 1996 law, would lock himself into rhetoric and logic that would compel him to vote for a constitutional right to same-sex marriage in a later case.
It is not that the conservatives felt certain they would win. It is that their chances would not improve in the years ahead. That leaves the question of the fourth vote. The most likely answer is that it was that of Chief Justice John G. Roberts Jr., though he did not sound at all pleased on Tuesday to have the case before him...
