Tom Goldstein at SCOTUSblog thinks so:
The bottom line, in my opinion, is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.
Several Justices seriously doubt whether the petitioners defending Proposition 8 have “standing” to appeal the district court ruling invalidating the measure. These likely include not only more liberal members but also the Chief Justice. If standing is lacking, the Court would vacate the Ninth Circuit’s decision.
That would be just fine with me. I have written before at some length about the legal issues in gay marriage (and I probably will again), but right now suffice to say that even though I believe that public opinion has been going (and will continue to go) in the direction of extending the right to marry to gay couples, that has nothing to do with what the Court should do on the issue.
SCOTUS should not operate as a public referendum, although it certainly sometimes does. SCOTUS should interpret the law and the Constitution and apply it. If the Consitution should be interpreted to guarantee that gay people have a universal right to marriage regardless of what the people of a state say they want, that’s what SCOTUS should rule. If the Constitution (and its amendments) does not guarantee such a universal right, and the people of a state want to regulate the practice of gay marriage in either direction, then they should be allowed to do so. If the people of a state want a change of some sort, the proper forum would be the state legislature and/or a state referendum. If the people want a national change and wish to create a new right to marriage for gay people where none existed before, the proper forum would be a constitutional amendment.
But SCOTUS previously had no trouble creating a new constitutionally-protected right (to privacy) in Roe v. Wade, and now (or in a little while, if not now) it may have no trouble creating a similar right to marriage that is protected from discrimination on the basis of the gender of both participants. If so, I am extremely concerned about the preservation of the right to religious freedom for those who have differing views. And of course there are also the slippery slope arguments (concerning polygamy, for example)
I tend strongly toward the libertarian point of view myself on this issue, which is fairly well-stated here by Richard A. Epstein of the Hoover Institute, and contains its own inherent dilemmas in regard to gay marriage. I differ with Epstein in that I am much more at peace with the idea of leaving the question to the states.
In the larger sense, I also think that our society has embarked (no, more than embarked; it’s actually quite far along on the journey) on a dangerous experiment in throwing out a great many time-honored values regarding marriage, the jettisoning of which has had an effect on children and families that is quite pernicious. And I’m not interested in social science research on the subject; I know social science research intimately, and I’m not especially impressed by either its validity or its objectivity on this subject or nearly any other subject that could be called political in nature—which turns out to be most subjects.
[NOTE: I have written before about the relation between gay marriage laws and those on miscegenation, here.]