It is widely anticipated that Justice Kennedy could be the swing vote on one or both cases, and court observers are wondering whether the justices will even rule on the merits of the cases at all, or whether they will simply decide that the respective appellants had no standing to have the case heard at all and dismiss them as improvidently granted. While it would certainly be optimal from the point of view of any subsequent court cases if the justices were to rule favorably on the merits of each case, a dismissal on issues of standing would certainly be a positive, as rights currently forbidden under DOMA would be eligible to be granted to legally married couples and same-sex marriages could resume in California after a what would approach a five-year hiatus.
SCOTUSBlog, a widely respected commentator on these matters, opines that DOMA will be struck down and that Justice Kennedy appeared favorable to the idea of dismissing the appeal in Hollingsworth on procedural issues, which would avoid a conversation on the merits of matter at hand. The American people, however, are increasingly ready for that conversation, even if the anti-equality Republican Party is not. Nate Silver has analyzed the evolution of national and state polling on views toward marriage equality and has noted that if support for marriage equality continues to increase at its current pace, that by 2020 there will be majority support all but six states by 2020, with the last holdouts unsurprisingly being the deep South.
Presuming that the Supreme Court does not take the unanticipated step of finding a right to marriage equality in the Constitution in either of these cases, polling indicates that the momentum generated by polling trends and the 2012 sweep of related ballot initiatives will lead to victories in more states over the next few years, and eventually, a Supreme Court with more deference to the opinion of mankind will determine that equality is inherent in the Constitution and end the resistance of whatever states have not passed equality on their own. The big question is, what happens then?
Despite spending millions to defend DOMA before the Supreme Court—the "United States" in the case title is not represented by the Department of Justice, but rather by the House Office of General Counsel—Republicans simply don't want to talk about their opposition to equality any more because they know that times have changed since 2004. Republicans face a huge dilemma as a party: Will they drop their opposition to equality and risk losing the enthusiasm of the theocratic wing of their base, or do they maintain their anti-gay positions while simply hoping the discussion simply doesn't come up?
The possibility of a plutocrat-versus-theocrat split is a significant risk for the Republican Party, true; but there is danger for Democrats as well. The LGBT equality movement is often compared to the racial civil rights movement, and in many respects the comparison is accurate. There is, however, one key difference. All Americans are entitled to equality under the law, regardless of race; but as Lee Atwater infamously explained, conservative economic policy is at its heart a continuation of the so-called "Southern Strategy" which seeks to conserve the systemic economic barriers that prevent minorities from actually achieving the equality to which they are entitled. And while religious arguments were certainly used to defend racial inequality, theocracy forms the centerpiece of the opposition to LGBT equality:There are no economic tie-is to tax policy, makers and takers, welfare, or other conservative economic hot buttons.
Consequently, as LGBT equality strengthens its current status as a mainstream view, especially among the younger voters who will dictate the social thought of the future, it will become much easier for Republicans to cast aside the theocratic dead-enders and work to eliminate a key issue of contrast that causes voters of all stripes to lean toward the Democratic Party. This moment may be years or decades off, and there will certainly be residual effects among the electorate for many more years after that. But eventually, the Democratic Party will need to aggressively seek areas of contrast to lure younger voters, instead of having contrast handed to it on a silver platter by theocratic Republican bigotry. The Republican war on reproductive rights seems to be continuing unabated, which will continue to provide an unfortunate opportunity; but eventually, Democrats will need to provide a much stronger contrast on making sure young people believe that we have an economy that works for us. Republicans are working for exactly the opposite, and that contrast won't go away any time soon.