Assuming the court finds that the supporters of Prop 8 have the standing to defend the measure, four outcomes are seen as possible for Prop 8 and marriage equality: the court could uphold Prop 8, a straightforward defeat that would leave marriage equality to be fought state by state; it could allowed marriage equality in California but not elsewhere under the logic that "states can’t strip gays of the opportunity to marry once they possess the right, as they did in California for the five months before Proposition 8 was approved"; it could grant marriage equality in states that have allowed civil unions, as the Obama administration argued in its amicus brief and as Adam B has argued is a likely outcome to the case; or it could simply say marriage equality is a constitutional right. The question on DOMA is more of an up or down: constitutional or not.
Many eyes will obviously be on Justice Anthony Kennedy, a frequent swing vote, but he's not the only justice people are wondering about:
For those reading tea leaves, there are signs [Chief Justice John] Roberts could be in play. While in private practice in 1995, Roberts gave pro bono help to the legal team preparing briefs and oral arguments for the Colorado case. And Roberts is using some of his personal allotment of tickets to this week’s arguments to allow one of his cousins who’s a lesbian and her partner to attend oral arguments, the Los Angeles Times reported. [...]Another question mark, of course, will be what wildly offensive things Justice Antonin Scalia says during oral arguments.
There is one potential wild card on the left: Justice Ruth Bader Ginsburg. Though she was a pioneering litigator for the American Civil Liberties Union on gender issues, she has repeatedly said she thinks the Roe v. Wade decision went too far because it forced a consensus that many Americans had not arrived at and led to a backlash.
A decision for Prop 8 or for DOMA would obviously be a letdown and a setback for the cause of equality. But while it might reinvigorate the bigots in their flagging fight to keep people from marrying, such a decision wouldn't stop the fight for justice and would come in the face of polling showing increasing majorities in support of marriage equality. Fighting it out state by state would be grueling and there would be too many injustices along the way, but the eventual winner is clear.