Scalia and Roberts didn't vote for same-sex marriage. Kennedy and Sotamyor didn't vote against it.
If the fact that Roberts and Scalia voted with three "liberals" (centrists, actually) causes some freepers ignorant anguish then that's wonderful, but I suspect that the votes on the Prop 8 case was a mix of abstract opinion about judicial fine points and very politicized "gaming the system."
And certainly Scalia was not voting for the proposition that Adam and Steve should be able to marry in California.
Everyone on the court knew DOMA would go down (all opinions are circulated in draft form, everyone says how they're inclined to vote early on in meetings, etc..), and what reasoning Kennedy and the others used. Finding that DOMA violated the equal protection clause, as Kennedy did, puts all discrimination against gay unions in marriage law in doubt.
25, 30, some large number of states have anti-same sex marriage laws similar to Prop 8. Those laws were not struck down by the DOMA decision. They were imperiled by it, but all those laws (except Prop 8) remain law today.
If Prop 8 had been analyzed as an equal protection issue it probably (to my thinking) would have been struck down as unconstitutional AND taken all the other state laws down also.
I would guess that Breyer, Ginsberg, Sotamayor, Kagen, Alito and Thomas had sincere and strong and differing opinions of the narrow question of whether the Supreme Court could properly take up the case at all--whether the parties had standing.
I would guess that Roberts and Scalia voted to avoid having Prop 8 decided on the merits, which may well have taken down all state anti-gay marriage laws if decided by the same 5-4 as the DOMA case. Thus they voted to lose the battle but not the war.
And Kennedy voting that the case had standing may have been a narrow and abstract legal opinion or may have been a desire to have all those state laws struck down.
If the court had been 5-4 that the Court should decide Prop 8 on the law's merits then none of those nine votes would have any bearing on how the justices would then vote on Prop 8 itself.
The justices who didn't think the court had standing would still end up voting on the merits of the law. Their standing opinion would have lost and the law of the land would be that the case DID have standing, and as such would then be considered by all 9.
And had that happened, we almost surely would have seen another 5-4 on partisan lines with Kennedy being the one who decided whether state laws against same sex marriage were or were no unconstitutional.
Having found that DOMA was discriminatory (in a way that violated equal protection), it is hard to see how Kennedy could have then found that laws against gay persons marrying in the first place were not also a violation of equal protection. And that would have taken down the whole rotten edifice.
So I suspect that there's a decent chance that Roberts or Scalia or both actually thought the case DID have standing, but voted politically/strategically that it did not.
We'll see if there are any stories about last minute vote switches. It is entirely possible that all 9 voted their truest conscience on the narrow and abstract standing issue, and my suspicions of some strategic political voting are wrong.
I posted a similar analysis this morning, but wanted to offer it in clearer form with the benefit of the events settling in.
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