Between now and June 1st the California Supreme Court is expected to issue a ruling on the legality of Proposition 8. For those who may have been living in a hole for the last few months, Proposition 8 amended the California Constitution to overturn a prior ruling and make same sex marriage illegal.

Opponents to the law have challenged it on the ground that it is a revision (IE a major change to the Constitution) and thus required legislative approval. As I previously discussed, while I was strongly opposed to the initiative, I felt that the hearings seemed to favor those who supported it.

I still suspect that this is true but in recent days I have begun to speculate over what course the justices might be taking as they come to a decision. One of the issues to consider is to what degree their decision will rest on the law and to what degree it will rest on other factors.

I know that some of you are already thinking that the courts are not supposed to consider anything but the law in their decisions, but we all know that is not the way things work. A judge is human and cannot help but to ponder the impact of his ruling on the population. Indeed during the 1950’s and 1960’s the US Supreme Court took great care to consider the impact of their rulings on Civil Rights issues

Of course depending on which outside factors they bring in it could help or hurt the cause of the Proposition. As I’ve said, if they base the ruling entirely on the law I think Proposition 8 would be struck down. The law is clearly a revision of a major right (whether you agreed with the Supreme Court ruling or not, it did grant a fundamental right to same sex couples).

So how might outside factors play in to the ruling ?

Well to begin with I think  you probably have a couple Justices who, for a variety of reasons both legal and personal, are locked in to voting to uphold the Proposition and a couple more who are locked into voting to strike it down. The key is therefore the 3 swing justices, two of whom voted for same sex marriage and one who voted against in the previous case.

There are two possible ways outside factors could impact the justices. The first is if one of those who voted in favor of same sex marriage becomes concerned about being re-elected the next time they are on the ballot. This could push them towards upholding the Proposition.

On the other hand, if they do uphold 8 it will simply mean another initiative on the ballot in 2010 or 2012. If they strike it down, then the issue is basically over because it would require the state legislature to act to place another initiative on the ballot.

 That is unlikely to happen so it would basically end the process. This could influence a justice who was leaning towards supporting 8 to decide it was better to end this issue from going back and forth every two years.

Obviously there are many other factors at play and I certainly do think it is possible one of the Justices who ruled in favor of same sex marriage last time could decide that this was a proper change to the Constitution and uphold the law.

Again, I expect that 8 will be upheld, but I would not be shocked if it was struck down.