This doesn’t answer the question completely. The state’s asserted interest won’t be enough to pass scrutiny in that case, but the law still survives rational basis if the court can conceive of another legitimate interest that is served by the law. As you’ve pointed out yourself, it doesn’t matter what the state says its purpose is or whether the means are rationally related to that purpose.
Changing track a little bit here—is there any chance that the 4 presumed most likely to vote against the overturning of prop 8 would actually vote otherwise? Could any of those justices, in the opinions of those who have read their previous decisions/understand their judicial philosophies, hear a killer argument that convinces them to give Sexual Orientation intermediate or strict scrutiny status? Could an argument be formed that Justice Scalia, for example, would buy even if he disagreed on a personal level?
Yup. But I’ve said that so many times before that I was just plumb tuckered out.
Not Scalia or Thomas.
I believe Thomas won’t vote for it under any circumstances.
Scalia will vote against his personal preferences to follow the law, but I can’t imagine an argument to induce him to do so here.
Roberts and Alito - probably not, either, but I can’t say I have as strong a handle on them.
The other option, of course, is that it doesn’t get to the Supreme Court; instead that another referendum, this one striking out the language of Proposition 8, is placed on the ballot and passes, and the case thereby is rejected for mootness.
Update; a California state appellate court has refused to order Governor Schwarzenegger or Attorny-General Brown to defend Prop 8 in federal court. I doubt the CA Supreme Court would rule differently. Only 9 days left before the time limit for filing an appeal is up.