Professor Lisa McElroy discussed the U.S. Supreme Court same-sex marriage cases on Southern California Public Radio's Airtalk on March 26 and on CBS Radio LA on March 27.
The Supreme Court concluded two days of oral arguments in the two cases examining the constitutionality of the federal Defense of Marriage Act (DOMA) and Proposition 8, the California law which banned same sex marriage.
The biggest question in the Proposition 8 case is what form of scrutiny the Supreme Court might apply, McElroy told Airtalk. Strict scrutiny, the hardest standard to overcome, could be applied if the justices decide that same-sex marriage is a fundamental right, she said. If this were to happen, it is likely that Proposition 8 would be struck down, she added. Thus, proponents of Proposition 8 are seeking rational basis review, which is a much easier standard to overcome, McElroy said. McElroy claimed that the justices could also decide to treat this as an equal protection clause issue, which would raise other considerations for review.
However, judging from the tenor of the conversation among the justices during the arguments, McElroy suggested that they might be leaning towards dismissing the case without reviewing its merits. There is a method by which the justices could "dismiss the case as improvidently granted," she said. This would be tantamount to the justices saying that they should have never granted certiorari, or judicial review, and should not be deciding any substantive arguments, she said. Such an outcome is quite possible because few justices supported taking the case in the first place, McElroy concluded.