Supreme Court Strikes Down DOMA, Punts on Prop. 8 Tommorrow is the last opinion day of this Supreme Court term, and we will get opinions in the three remaining cases. Obviously Perry (Prop. 8 challenge) and Windsor (DOMA challenge) are the two big ones and will dominate the news coverage. Any guesses as to the outcome in those cases? I'll start by saying I think it is pretty likely that DOMA will be struck down, likely in a Kennedy opinion. Grounds for doing so could be either federalism (that the federal government did not have the substantive power to enact DOMA because regulation of family law is a matter of state law) or the equal protection access to benefits argument. Federalism is the narrower of the two grounds for doing so and EP the broader, so it depends largely on how sweeping of an opinion could garner a majority probably. Prop. 8 is a lot less clear. I don't think many people foresee the Court being able to get a majority to uphold it, but it has alternate bases for avoiding the question. The one being predicted a lot right now is that perhaps it will be disposed of on standing grounds (that the supporters of Prop. 8 did not have standing to appeal the district court decision once the California state government abandoned the case after the trial). If that's the result, the Chief Justice is probably writing the opinion. It also raises the interesting question of what happens to Judge Walker's injunction in the District Court. It would pretty clearly mean that the actual plaintiffs in the case could get married, but because it wasn't a class action Judge Walker arguably exceeded his powers by issuing a state-wide injunction (if his injunction is construed that way, which both parties seemed to assume). So the Court could narrow his injunction, but there is also the argument that the Prop. 8 supporters lacked standing to appeal the overbroad injunction as well and since the officials it was directed at did not appeal it should stand. That will be interesting. The other possibility in Perry would be an EP clause ruling. There are lots of possibilities within EP clause treatment, but the Court heightening scruitny based on sexual orientation seems like one of the less likely ones. Either finding no rational basis (as the Ninth Circuit did) or calling it gender discrimination to get to intermediate scrutiny would both be more likely. That would probably be a Kennedy opinion as well if it went the EP route.