Attribution: Raw Story

- France’s constitutional court has approved the marriage equality bill today. After it was passed by the assembly, the opposition party challenged the bill, before the bill is signed into law. Now that the court has approved the bill it is expected to be signed quickly.

- A former Obama administration official, who is gay, is calling for an executive order preventing anti-LGBT discrimination by federal contractors.

- The Puerto Rican senate yesterday approved a broad anti-LGBT discrimination bill.

- It’s the ninth anniversary of marriage equality in the United States.

- Portugal’s parliament passed a law that lets gay couples adopt.

Supreme Court building

As the end of the Supreme Court term and the release of its final opinions gets closer, more legal experts are weighing in with predictions and thoughts on which outcome in the marriage cases seems the most likely. As EqualityOnTrial has reported, there are lots of complicated options with different outcomes (ranging from good to relatively bad) and just looking at Hollingsworth v. Perry, the Prop 8 case, there’s no consensus on what will happen, though most people who have commented on the case believe the result will be narrow.

Two others recently offered their own thoughts and predictions: Laurence Tribe, who has done LGBT rights work before (most notably arguing before the Supreme Court in Bowers v. Hardwick, but also arguing National Gay Task Force v. Board of Education a year prior to Bowers) wrote commentary on the cases, while former Justice John Paul Stevens made his predictions while speaking at an event in Arlington.

Tribe, a Harvard Law professor, believes the decisions in both the Prop 8 and DOMA cases will be narrow, but he suggested that the result of the Court’s decisions would be that neither law will remain standing:

Regarding the pair of cases currently pending in the Supreme Court, my hunch – and it is only that – is that the Court will narrowly conclude that the DOMA [Defense of Marriage Act] issue is properly before SCOTUS on the merits notwithstanding the solid reasons to doubt that BLAG [Bipartisan Legal Advisory Group of the U.S. House of Representatives] is a proper representative of Congress and that the Court will hold DOMA’s Sec. 3 unconstitutional by a vote of 5-4, with Justice Kennedy relying heavily on the kinds of federalism considerations that Judge Boudin found persuasive in CA1 [U.S. Court of Appeals for the First Circuit] but with the more liberal four justices relying squarely on the equality component of fifth amendment due process.

As to Hollingsworth, however, I doubt that the Court will conclude that Chuck Cooper and the other private proponents of Prop 8, all lacking a fiduciary duty to California, have Art. III standing to defend it on the merits in the Supreme Court (despite what the state’s highest court concluded) and will dismiss that case on standing grounds, leaving in place Judge Walker’s statewide injunction against Prop 8 but setting no nationwide precedent. Alternatively, despite the Rule of Four, I wouldn’t be too surprised to see the Court dismiss cert as improvidently granted, leaving CA9’s [U.S. Court of Appeals for the Ninth Circuit] decision in place but again setting no nationwide precedent.

In other words, he suggests the Court will reach the merits in Edith Windsor’s DOMA case somehow ruling in favor of its jurisdiction to decide the case, and there will be five votes for striking down Section 3 of DOMA. It’s not clear whether he thinks there will be 5 votes for a holding on the reasoning for striking down the law: since he writes that four will vote based on equal protection with Justice Kennedy voting based on federalism, that would divide the rationale. But it’s worth nothing that the First Circuit’s opinion expressly denied that they were striking down the law based on federalism alone. Ultimately Judge Boudin’s opinion struck down the law based on equal protection, but he said explicitly that the federalism concerns presented by the law, whether or not they make the law unconstitutional under the Tenth Amendment, certainly make the law more suspect constitutionally. If Justice Kennedy adopts Boudin’s opinion then there would be five votes for an equal protection holding, even if he’s the only Justice who addresses the federalism concerns Boudin found only partially relevant.

He also writes that he believes it’s reasonable that government officials in California and in the federal government declined to defend these laws, and still enforced them. But his piece suggests that different accommodations should have been made to ensure adequate defense of the laws. He briefly writes that BLAG is probably not a party with Article III standing to defend the constitutionality of DOMA, but he doesn’t elaborate. There were arguments in some of the briefs that since BLAG is simply a “legal advisory group” for one body of Congress it lacks standing: they can’t claim to represent even the full House, and even less so the entire Congress, since the Senate did not authorize Congress’ involvement in the case. And though the BLAG is made up of five members who took a vote to decide to get involved in the case, only its three Republican members voted to get involved. The two Democratic members opposed involvement. This year the House rules added a rule suggesting that the BLAG can “continue” to represent the House, but there was no authorization by the full House before this year. So without knowing Tribe’s reasoning, the briefs in the case offered some evidence that the standing issue is questionable here.

He also answers Justice Scalia’s question at oral argument, when he asked “when” same-sex marriage bans “became” unconstitutional:

On the one question of just when a ban on same-sex marriage “became” unconstitutional, however, my answer would be that, from a rather formal perspective, it was unconstitutional from the moment the Fourteenth Amendment was ratified although, from a more evolutionary and thus realistic perspective, it is still in the process of becoming unconstitutional in the sense that the constitutional status of challenged action is a function of an evolving partly political/cultural and partly legal development rather than something akin to the “fact of the matter.” Asking when this kind of ban “became” unconstitutional is like asking when the ban on interracial marriage “became” unconstitutional: the answer might be said to be 1967, when Loving v. Virginia was decided, but it also might be said to be 1868, when the Fourteenth Amendment was ratified. The question isn’t of the same metaphysical character as, e.g., the question of when the oceans of the earth were formed, or when the big bang occurred, or when George W. Bush became President of the United States.

Justice Stevens joined the Supreme Court as a moderate Republican, but when he retired, he was considered the Court’s most liberal member. He has agreed before that the issue of gay rights can be viewed as the civil rights issue of this era. And he hasn’t said whether marriage bans are unconstitutional but has noted the country’s movement on the issue. The report on Justice Steven’s comments doesn’t dwell on the things he said about the marriage cases, so there is not much to report, but his predictions were not far off from Tribe’s:

This is similar to most predictions we’ve seen lately: narrow results but still the end of these anti-gay laws. Either way, based at least on the oral arguments, it appears the votes could be closer than expected.

A Nevada Assembly committee voted yesterday to advance a constitutional amendment that would allow same-sex couples to marry in the state, setting it up for a full vote in the chamber sometime this session.

Yesterday’s vote in the Assembly Legislative Operations and Elections Committee came down along party lines, with all seven of the committee’s Democrats voting in favor of Senate Joint Resolution 13 and all three Republicans voting against it.

The Nevada Senate approved SJR13 by a 12-9 vote in late April, and the Assembly vote–which is expected to succeed–will be the final legislative consideration of the bill this session.  As we noted when the legislature first took up the bill, the amendment has a long path ahead of it before Nevada couples will be allowed to marry:

“The amended bill will have to be approved by both houses of the Nevada legislature during the current session and again during the 2015 session, and then placed on the 2016 ballot as a constitutional amendment.  If Nevada voters approve the amendment, the marriage equality ban currently in the state’s constitution would be removed and replaced with language inclusive of same-sex couples.”

One Republican Senator voted in favor of SJR13 when the upper chamber considered the bill.  Democrats hold a strong 26-15 majority in the Assembly.

The proposed constitutional amendment, which is being spearheaded by the ACLU and the Progressive Leadership Alliance of Nevada, is not the only push to bring marriage equality to the Silver State: Lambda Legal, an LGBT legal advocacy group, is currently pursuing a federal lawsuit, Sevcik v. Sandoval, challenging the state’s refusal to offer marriage licenses to same-sex couples.

The suit contends that Nevada’s laws, which provide same-sex couples with domestic partnerships but not full marriage rights, violate the equal protection provisions of the U.S. Constitution’s Fourteenth Amendment.  In its complaint, Lambda Legal wrote that Nevada’s laws subject the suit’s plaintiffs “to the inferior and novel status of registered domestic partnerships, and has disrespected the marriages some of them have entered in other jurisdictions, because they are  lesbians and gay men in same-sex relationships.”

A federal district court judge upheld Nevada’s marriage equality ban last November; that decision has been appealed to the Ninth Circuit.  The case is currently on hold until the Supreme Court issues a ruling in the Proposition 8 case out of California, which also falls under the Ninth Circuit.  The Sevcik case has also been appealed–unsuccessfully, so far–directly to the Supreme Court by the Coalition for the Protection of Marriage, which is defending Nevada’s marriage equality ban.

Arizona state seal

The people of the state of Virginia are now joining the ranks of those who support marriage equality (most recently, majority support was found in Michigan, and in Nevada in February.) The recent polls seem to match the overall trend reported by Pew Research and Gallup: Americans in all age groups increasingly support same-sex marriage.

Metro Weekly has the report on the Washington Post‘s Virginia poll:

A Washington Post poll of Virginians regarding various social issues shows that a majority of Virginians believe same-sex marriage should be legal, a finding that challenges other polls in recent years showing that marriage equality still lacks broad support across the commonwealth.

According to the Post poll, 56 percent of Virginia adults believe it should be legal for gay and lesbian couples to get married, while 34 percent think it should be illegal. Ten percent expressed no opinion. Among registered voters, those who thought it should be legal led by a similar margin, 56 to 33 percent.

The poll was conducted by telephone from April 29 to May 2 among a random sample of 1,000 adults in Virginia, including 887 registered voters and users of both conventional and cellular phones. Among registered voters, the poll has a margin of error of 4 percentage points.

According to the poll results, independents and Democrats are showing majority support (which is the same in most recent polls on the issue) but Republicans are not. Women and non-whites support marriage equality more strongly than men and whites. And 72 per cent of 18-29 year olds in the state support marriage equality, but only 22 per cent in that age group are in the opposition.

Metro Weekly interviewed the executive director of Equality Virginia about the poll:

In an interview with Metro Weekly, James Parrish, the executive director of the nonpartisan LGBT rights organization Equality Virginia called the results of the Post poll “exciting to see.”

“It’s definitely nice to see, but it’s something we expected,” Parrish said. “Support in Virginia mirrors what’s going on nationally. Hopefully, this will set Virginia up to be able to remove the marriage amendment and allow same-sex couples to marry in the state.”

Parrish noted that the strongest movement in support for LGBT rights has occurred among Republicans. He said that polling by Equality Virginia has also seen that shift among Republicans in its own polling, which explains why a bill supporting workplace nondiscrimination protections in state employment garnered stronger-than-usal support from Republicans this past legislative session. That measure passed the state Senate 24-16 before being killed in committee by members of the House of Delegates.

The Advocate also notes, via a Talking Points Memo report, that Arizona voters (who banned same-sex marriage by voter initiative in 2008) now support marriage equality by a fairly strong margin:

Even Arizona, where the legislature is currently considering a bill that would forbid transgender people from using the restroom that corresponds with their gender identity, is feeling the push toward marriage equality. Although Arizona voters overwhelmingly passed a constitutional amendment banning same-sex marriage in 2008, 55% of voters now favor marriage equality, according to a Rocky Mountain Poll released Wednesday and published at TalkingPointsMemo. Opposition to the freedom to marry among registered voters is just 35%, according to the poll. Support for marriage equality was high among women, Latinos, and voters under the age of 55. But even among voters older than 54, 46% support marriage equality, while 40% of the demographic is opposed.

TPM notes that support in the state transcends race, gender, and age:

Large majorities of women, Hispanics and voters under the age of 55 support same-sex nuptials. A plurality of voters over the age of 54 — 46 percent — supports gay marriage, while 40 percent of the group is opposed.

All of these states have LGBT-related lawsuits pending in federal court: Michigan’s anti-gay amendment is being challenged in federal court, while a case involving gay rights in Arizona is pending before the Supreme Court: Brewer v. Diaz involves an attempt by Arizona Governor Jan Brewer to rescind domestic partnership benefits from same-sex state employees; she asked the Court to allow her to continue denying the benefits while the case is pending in the lower courts. No action has been taken in either case, and since the Court will decide cases involving Prop 8 and DOMA, no action is expected until June at the earliest.

In Virginia, the state’s attorney general has appealed a decision striking down the “crimes against nature” (sodomy) law as unconstitutional under 2003′s Lawrence v. Texas. The full appeals court declined to rehear the case.

In these states, it seems unlikely at best that marriage equality will be legalized without court action. Although voters are changing their minds, many of the state officials are socially conservative. But these lawsuits will probably proceed after the Supreme Court rules next month.

Media Matters

By Jacob Combs

A new report by Media Matters reveals that coverage of recent marriage equality wins in Rhode Island, Delaware and Minnesota varied dramatically by cable news network, with MSNBC providing the most in-depth coverage and Fox News practically ignoring the issue.

Of the three legislative victories, MSNBC mentioned marriage equality stories 35 times, CNN mentioned them 13 times and Fox made just three mentions.  The duration of each network’s coverage differed dramatically, with MSNBC devoting substantially more time to the issue than the other two networks.  For example, MSNBC devoted more than 10 minutes of time to Rhode Island’s marriage equality law, while CNN spent a little over a minute and Fox News only 16 seconds.

Fox chose not to even mention the marriage law that passed in Delaware, while CNN spent a little under a minute and MSNBC a little under two.  On Minnesota, Fox spent 44 seconds, CNN spent around 2 minutes, and MSNBC devoted a whopping 37 minutes of time, most of it from multiple segments on the story on Up with Steve Kornacki.

In a related report, Equality Matters (a Media Matters affiliate) pointed out that while Fox News spent only one minute of airtime on developments in the three states, the network did include some stories on marriage equality, most of which were not decidedly positive.

For example, the day before Rhode Island’s marriage vote, Bill O’Reilly featured a speech by Russian gay activist Masha Gessen saying that marriage equality would “change” the institution of marriage and that “it’s a no-brainer that the institution of marriage should not exist.”  O’Reilly cited Gessen’s statements as evidence that “a lot of gay activists” secret plan is to destroy marriage -something he called “the Swedish model.”  (As Equality Matters’ Carlos Maza points out, marriage rates in Sweden are actually increasing.)

On May 10, TV personalities on the network’s Fox & Friends lambasted the “P.C. police” for modifying federal forms (such as the Free Application for Federal Student Aid, or FAFSA) to include gender-neutral language that is inclusive of same-sex couples.

Nobody doubts that MSNBC and Fox News have their unique philosophical and ideological bents.  Still, it’s remarkable to see Fox essentially ignore this month’s marriage equality news, which has seen a dramatic acceleration of increased progress for equal marriage rights.

Nevada legislature

The state of Nevada is moving forward on pro-LGBT legislation. This week the state Assembly added gender identity and expression to its existing hate crimes legislation. The state’s Republican governor Brian Sandoval is expected to sign the bill:

Similar legislation passed in the state assembly during the last legislative session in 2011, only failing in the Senate. During that session, the legislature passed transgender inclusive non-discrimination legislation in housing, public accommodations and employment. Republican Governor Brian Sandoval signed all three pieces of legislation during the first year of his first term and is expected to sign this bill as well.

The bill passed overwhelmingly, with only one senator voting no last month, and a large number of House members voting for it this week:

The Assembly passed the measure on a 30-11 vote with only Republicans opposed. The bill already cleared the Senate and now heads to Republican Gov. Brian Sandoval.

“This does afford victims special rights,” said Assemblyman Andrew Martin, D-Las Vegas, who is openly gay. “This is a statement of what our society is, and that we will not tolerate the systematic targeting of individuals who are historically disadvantaged groups.”

Sandoval spokeswoman Mary-Sarah Kinner told The Associated Press Tuesday that the governor supports the legislation.

The bill, SB139, would add “gender identity or expression” to the list of motivations deemed to be hate crimes under state law. Supporters outlined in graphic detail several instances of the violent nature of crimes motivated by hate, saying the added protection would help deter more violent crimes.

As EqualityOnTrial recently reported, the state is also moving forward on marriage equality, albeit at a much slower pace. A constitutional amendment to replace the anti-gay marriage amendment would eventually be placed on the ballot in 2016, after it passes this legislative session and then gets through the Assembly again in 2015. With three weeks left in the session, the bill should pass quickly.

Activists in the state have been pursuing marriage equality there for years. The state’s domestic partnership law treats same-sex couples almost exactly the same as opposite-sex married couples, but same-sex couples are denied the title of marriage. That regime is seen as irrational, and it’s being challenged in federal court by Lambda Legal in Sevcik v. Sandoval, who believes the exclusion of same-sex couples from marriage denies them equal protection of the laws. That case is on hold, though, pending the Supreme Court decisions in Hollingsworth v. Perry and United States v. Windsor. The district court had ruled against the plaintiffs, same-sex couples, and the case is on appeal to the Ninth Circuit Court of Appeals. But the Coalition for the Protection of Marriage, the proponents of the ballot initiative that amended the state constitution to ban same-sex marriage, petitioned the Supreme Court to review the case before judgment at the appeals court. The plaintiffs oppose review at this stage. The Court hasn’t taken action on their petition and no other action is expected until the Court’s other rulings. The Sevcik case is expected to be heard on a parallel track with Hawaii’s marriage equality case, Jackson v. Abercrombie. The Ninth Circuit, which struck down Prop 8, seems like a more favorable court, so they may be inclined to strike down Nevada’s ban as well when it reaches them.

A recent poll showed majority support for the amendment to overturn the marriage equality far ahead of the 2016 election. Whether the courts strike the ban or voters invalidate it in 2016, things are progressing in Nevada.

A new poll released yesterday in Michigan reveals a dramatic uptick in support for marriage equality in the state, with 56.6 percent of respondents favoring equal marriage rights and 36.7 percent opposed, according to the Detroit News.

Those numbers represent a remarkable increase–more than 12 percentage points–of public support for marriage equality in Michigan since last year, a shift that was attributable in large part by Republicans and independent voters changing their minds on marriage rights.  Support amongst Republicans increased more than 16 percent since last year, while independent voters’ support jumped by 14 percent.

“I don’t think I’ve ever seen a policy question move as quickly as this one,” said Richard Czuba, president of Glengariff Group, a Chicago-based organization which conducted the poll and has examined Michiganders’ views on LGBT rights since 2004.  According to Glengariff’s poll, 90 percent of the state’s voters favor some kind of legal protection for gays and lesbians, with 65 percent supporting civil unions.

As we noted earlier this month, Michigan has some of the weakest LGBT rights laws in the nation: the state constitution bans both marriage equality and civil unions or domestic partnerships and joint adoption by same-sex couples is illegal.  Only government employees are protected from employment discrimination based on gender expression or sexual orientation, and Michigan was one of only 14 states with a sodomy law on the books when the U.S. Supreme Court ruled such statutes unconstitutional in 2003.

According to the Detroit News, LGBT rights legislation is expected to be filed in the current legislative session, and Equality Michigan is laying the groundwork for a 2016 ballot measure to repeal the state’s marriage equality ban, added to the Michigan constitution in 2004.  A federal district court challenge to the state’s marriage ban and adoption laws is currently on hold pending the Supreme Court’s decision on the constitutionality of Prop 8 and DOMA.  That case is known as DeBoer v. Snyder.

Crowd at signing ceremony for Minnesota’s marriage equality law, photo credit: MN United

Minnesota’s Governor Mark Dayton signed the marriage equality bill late this afternoon; The bill passed the Senate yesterday, 37-30, and it passed the state House last week, 75-59.

BREAKING: Governor Dayton has just signed the freedom to marry into law. #time4marriage #mnmarriage

— Minnesotans United (@MN4allfamilies) May 14, 2013

Daily Kos has part of Governor Dayton’s remarks:

What a difference a year and an election make in Minnesota! Last year there were concerns that marriage equality would be banned forever. Now, my signature will make it legal in two and one-half months.

First and foremost, I want to thank the people of Minnesota, who voted last year to defeat a very destructive Constitutional Amendment, and also to elect courageous legislators, who would support this monumental social advance.

I want to thank the activists, all of you here tonight and the thousands more throughout our state, who worked so long and so hard to win this extraordinary victory. [...]

It is now my honor to sign into law this next step for the State of Minnesota to fulfill its promise to every Minnesotan.

The Huffington Post has additional comments from the lawmakers who attended the signing ceremony.

And earlier today, the Associated Press reported some details on the signing ceremony, highlighting the new law’s impact on its two main sponsors, who are gay:

When Gov. Mark Dayton adds his signature to the bill legalizing gay marriage in Minnesota later Tuesday, its two main sponsors will stand triumphantly beside him admiring the fruits of their long and often demoralizing struggle for gay rights.

Democrats Rep. Karen Clark and Sen. Scott Dibble are gay, and Tuesday’s signing ceremony on the state Capitol’s front steps will allow Clark to marry her partner of 24 years in the only state where she’s ever lived.

“I thought it would happen someday, but I didn’t know I would be able to be here to be part of it,” Clark said Tuesday, hours before Dayton planned to make Minnesota the 12th state to legalize gay marriage and the first in the Midwest to do so by a legislative vote.

Their report also notes that the state will begin to issue marriage licenses on August 1, when the law takes effect. Minnesota voters voted down a constitutional amendment to ban marriage equality this past November, on the same day that the voters of three other states passed marriage equality into law for the first time. And Minnesota is the third state this month, and the twelfth state to allow same-sex couples to marry in the United States. Illinois could be the thirteenth – the state House has until the end of the month, when the General Assembly adjourns, to vote on the bill and send it to Governor Pat Quinn. Illinois Unites has issued a statement congratulating Minnesota and urging the Illinois House to pass marriage equality.

St. Paul is hosting a post-ceremony celebration and concert.

Brazilian Flag

Brazilian Flag

By Jacob Combs

Brazil’s National Council of Justice (CNJ), a top judicial panel, ruled today that same-sex couples across the country cannot be denied a marriage license, and that government officials must provide such licenses when they are requested.

The new development, first reported by the newspaper O Globo, would bring to an end the legal maneuvering same-sex couples faced in several Brazilian states after a 2011 Supreme Federal Court decision ruling that gays and lesbians can enter into legal unions.  After that ruling, couples throughout the country were able to seek a judge’s approval to convert their ‘stable union’ into a full marriage.

Since Brazil has a federal political system similar to the United States, individual states were allowed to extend marriage rights to same-sex couples that would allow them to automatically convert their stable unions without going before a judge.  Several states have amended their laws in this way, the most recent being Rio de Janeiro in late April.

In its 14-1 ruling, the CNJ wrote that the Supreme Court “affirmed that the expression of homosexuality and homosexual affection cannot serve as a basis for discriminatory treatment, which has no support in the Constitution,” according to Agence France-Presse.  The decision was authored by Joaquim Barbosa, who heads the CNJ and is also the chief justice of the Supreme Court.  The CNJ’s decision can still be appealed to the high court.

Brazilian legislators are currently considering a bill that would officially legalize marriage for same-sex couples.  In its decision, however, the CNJ said that there was no reason to delay offering marriage licenses to couples while the Brazilian Congress considers marriage equality legislation.

Attribution: LGBTQ Nation

Greg Stohr, writing in Bloomberg News, takes a look at the looming decision in Hollingsworth v. Perry, the Prop 8 case. The Justices are widely expected to issue the decision in late June, possibly in the last days of the Term. The piece examines the issue of the Prop 8 proponents’ legal standing to appeal the case, an issue that was briefed and argued in the case and is a threshold issue the Justices will need to decide before reaching the merits. The issue of Article III standing is important in the case because none of the government defendants appealed the district court’s decision striking down the initiative, and that left only the ballot initiative proponents to appeal. The government defendants enforced the law but didn’t defend it in district court, although as Marty Lederman pointed out at SCOTUSBlog, most of the government defendants filed answers to the plaintiffs’ complaint, and no one opposed the proponents’ motion to intervene in district court to defend the amendment’s constitutionality:

The California Attorney General, Jerry Brown (now the Governor), answered the complaint by admitting that Proposition 8 violates the Fourteenth Amendment. The other named defendants, including then-Governor Arnold Schwarzenegger, did not admit the allegations, but also joined Attorney General Brown in refusing to defend the new law. Despite this nondefense, the defendants continued to enforce the law by denying marriage licenses to same-sex couples, including the plaintiffs.

In the meantime, the five proponents of Proposition 8 and ProtectMarriage.com filed a motion to intervene as of right in the Perry proceeding, pursuant to Federal Rule of Civil Procedure 24(a), on the ground that the named defendants would not adequately defend the measure’s constitutionality. No party opposed the motion, and the district court granted the proponents’ motion to intervene, ruling that “as official proponents, they have a significant protect[a]ble interest in defending Prop 8’s constitutionality.” The proponents thereafter controlled the defense of Proposition 8 in the district court.

After the proponents appealed the Ninth Circuit asked the California Supreme Court if ballot initiative proponents either have a particularized interest or can step into the state’s shoes to defend their interests in a passed ballot initiative. The California Supreme Court said that proponents can defend the state’s interest, and the Ninth Circuit held that their decision led to the conclusion that the Prop 8 proponents would have standing to appeal based on the state’s interest in defending Prop 8.

One of the plaintiffs’ lawyers told Stohr that they would be happy if, in the end, the Supreme Court ruled that the proponents lacked standing to appeal the case, because it would allow marriage equality in the state:

“A win on standing would be a victory that would establish marriage equality and wipe out Prop 8,” said Theodore Boutrous, a Los Angeles lawyer with Gibson Dunn & Crutcher. “We would be very happy with that.”

But Stohr talked to others who weren’t so sure that the ruling would be that simple or final:

A standing ruling might mean “a quick death for Prop 8,” said Vikram Amar, a constitutional law professor at the University of California Davis School of Law. “But it’s also quite possible — maybe more likely — that it will take some time before we know which couples, beyond the two couples who sued, would be able to get their licenses.”
[...]
Some constitutional law professors, including Marty Lederman of Georgetown University Law Center in Washington, say Walker lacked power to issue a statewide ruling.

“District court judges generally do not have the power to issue injunctions that protect persons other than the parties before them,” Lederman wrote in a post on Scotusblog, which tracks the court.

Amar has written previously that he believes that when ProtectMarriage, the ballot initiative proponents, took on the responsibility of passing the initiative and it did pass, voters didn’t knowingly appoint the group to represent the state (since, typically, the Attorney General and the Governor represent California’s interests in court.) His own view is that since ballot proponents aren’t appointed by voters to represent the state, they lack standing. He has also written (as he did in the series in the link above) that he believes both the Ninth Circuit and Judge Walker’s decisions should be wiped out.

Lederman’s argument is somewhat different: he has argued that Judge Walker didn’t have the authority to issue an injunction that applied to all couples or officials, and should have only enjoined officials from denying the actual Prop 8 plaintiffs a marriage license. He believes that even if the injunction is construed to only apply to the two couples in the case, state officials and lawyers have several options to extend the ruling to the whole state: state officials could choose to view the injunction as uniform and make sure it applies to all same-sex couples in California, or, alternatively, deny a marriage license to a same-sex couple and then refuse to defend or appeal a case when it is challenged, or deny a marriage license to a same-sex couple and when it’s challenged in court, file notices of appeal and make sure the case is adequately defended.

But as Stohr’s piece points out, the scope of Judge Walker’s injunction may not be addressed by the Court in the first place (the parties had disputed that there would be authority for the Court to change the scope of the injunction if it lacks standing to hear the case at all.)

Along with those options, one issue that Stohr doesn’t address is the possibility that the Court may “DIG” the case: dismiss the petition for certiorari as improvidently granted. That would mean the case would revert back to its status before the Court granted the petition, meaning the Ninth Circuit’s narrow ruling would remain in place, but it would only apply to California, since the facts of the case aren’t likely to be repeated elsewhere in the Ninth Circuit. The Court doesn’t DIG cases often, but it does at times. (This term they’ve already dismissed one case as improvidently granted.) There are limitations though, because of the process: it takes four votes to hear a case, so in theory, in all cases where only four Justices vote to grant cert, the other five could dismiss the petition as improvidently granted. Because of this, the Court usually won’t DIG a case unless at least one Justice who originally voted to grant cert has changed their mind. There was speculation, based on the oral argument, that it’s possible the four conservatives voted to hear (and would reverse) the case. If that’s true then it doesn’t appear likely any one of those four would change their mind.

Whatever will happen in June, there are several options that would eliminate Prop 8 even in the event of a Court ruling on Article III standing alone. And as others have pointed out, there are several more options for the Court to strike down Prop 8 if it chooses to issue a ruling on the merits. There’s only one decision that would definitively keep Prop 8 in place, and that would be for five Justices to uphold it. It’s objectively difficult to come up with five votes on the current Court for a decision upholding Prop 8. And this month, the three states that have passed marriage laws may have made that even less likely.