Schubert in The Blaze: What to Really Expect from the Supreme Court


Mission Public Affairs President Frank Schubert, who ran the successful Proposition 8 campaign, argues in The Blaze that the Supreme Court will issue a ruling on Prop 8 and will ultimately choose to uphold it:

The United States Supreme Court held oral arguments two weeks ago concerning California’s Proposition 8 and, predictably, the media pack have all come to the same conclusion. Their meme is that the Court will decline to rule on the merits as to whether Proposition 8 unconstitutionally defined marriage as the union of one man and one woman. Most base their conclusion on the comment by Justice Anthony Kennedy wondering if the case was properly granted. I believe the media pack has it wrong, failing to appreciate the box that Justice Kennedy likely finds himself in once the Court decided to grant review.

It may very well be that Justice Kennedy would prefer not to decide the Proposition 8 case on the merits. Kennedy is widely viewed as the potential swing vote on the constitutionality of marriage. Despite his lament about having to arbitrate the issue, Justice Kennedy effectively has little choice but to decide whether marriage as it has always been defined somehow violates the constitution.

Once the Court decided to grant review (Certiorari) in the Prop 8 case, Justice Kennedy’s hand was effectively forced. This is true for four key reasons.


For all these reasons, I believe that Justice Kennedy will ultimately agree with Justice Scalia that they have “already crossed that river” and now must reach the merits of the constitutionality of Proposition 8. So then what?

There was nothing in the oral argument to suggest that anything approaching a majority of the court is prepared to find a federal constitutional right to same-sex marriage. That being the case, I feel very good about the status of Prop 8 when the Court issues their ruling in the coming months. I also suspect that the media pack is likely never to admit their reporting of oral arguments were off target. More than likely they will immediately pivot, saying winning the most important victory for marriage ever achieved doesn’t really matter because – as they’ve been claiming for years — same-sex marriage is somehow “inevitable.” That’s another false meme, but we’ll deal with that one later, with the wind of a Supreme Court victory at our backs.