How Will the SCOTUS Handle Marriage Equality?

And I think there’s a good chance that Justice Kennedy would favor that approach. Like every case involving gay rights since 1987, Kennedy is the one who will determine the direction of the court. And his record is quite strong; he authored the two most important gay rights cases in the history of the court (Romer v Evans in 1996 and Lawrence v Texas in 2003). In both cases, he stopped short of applying intermediate or strict scrutiny, though he hinted at it, and applied only the rational basis test to reach the conclusion that both states laws were unconstitutional.

But the 2nd Circuit Court of Appeals, in striking down Section 3 of DOMA in October, explicitly applied heightened scrutiny and made very strong arguments for why the treatment of sexual orientation demands such a standard, citing Kennedy’s earlier decisions in the process. So this is not a question that the court is likely to dodge at this point. And the key, again, is Kennedy. And I think it’s pretty much a coin flip as to which way he goes.

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7 comments on this post.
  1. slc1:

    I think that the court might well punt on the proposition 8 case as it was decided so narrowly, thus allowing the appeals court decision to stand.

    The big question is what effect, if any, the three referendums that okayed same sex marriage will have on the court, especially Kennedy. As someone once said, the SCOTUS eventually follows the election returns.

  2. Michael Heath:

    In a pre-Obamacare ruling world, I like Ed’s perspective here. However, now I wonder if the dynamics on the court have changed since the Obamacare ruling. I was stunned at how blatantly political and partisan the conservatives were on that case, including Anthony Kennedy. Where I’m guessing the conservatives’ asses remained chapped.

    I think this new context probably, hopefully, increases CJ Robert’s reluctance to take on cases which would result in broad ruling, consistent with what Ed points out, with Kagan also reluctant to accept DOMA cases in she’d probably recuse herself. And I just can’t trust what we saw out of J. Kennedy in the past will be repeated, he demonstrated an incredible level of emotional zeal on Obamacare, equal to the worst we regularly encounter of Antonin Scalia. Revenge might be forefront on his mind.

  3. whheydt:

    I was recently discussing the progress of the Prop. 8 case with a lawyer who is a friend of mine.

    His informal opinion is that the conservatives will take the case out of fear of change in the makeup of the court in the relatively near future. He thinks they’ll want to rule in favor of Prop. 8 before Obama gets to nominate a more liberal replacement for one of the (aging) conservative justices.

  4. marcus:

    Nice summary and projection models. Thanks for this.

  5. marcus:

    whheydt @ 3 You bring up excellent points. I also wonder if “revenge” might inspire him to vote “for” marriage equality in opposition to Roberts’ probable “against” (and I think Kennedy might already support equality, at least to some degree, in this context).

  6. drr1:

    The cert grant (and thus, the questions presented – a HUGE issue at this stage) all comes down to which side thinks it has Kennedy’s vote. I’m guessing that the more liberal bloc likes Windsor – the Second Circuit DOMA decision that said classifications based on sexual orientation get intermediate scrutiny. It seems to be the next logical step for Kennedy; he’s gone the “rational basis plus” route before, so now may be the time to go all in with a quasi-suspect classification ruling.

    This case also has the benefit (as I think Ed mentioned above)that the Court won’t be required to rule directly on same sex marriage – affirming the Second Circuit just means that the feds can’t discriminate against folks who live in states that do recognize same sex marriages. Frankly, a ruling extending intermediate scrutiny to sexual orientation classifications would be a win of epic proportions. If that happens, the same-sex marriage issue falls into place quickly. Long story short: if Kennedy really wants to advance the cause of gay and lesbian civil rights, this is the road to follow.

  7. pilch62:

    I’ll second, third, fourth, or wherever we are on the Supremes not taking the Prop 8 case. DOMA can be dealt with without getting into the sticky issue of whether the rationale(s) of Loving v. Virginia can or should be applied to same-sex marriage. The abrogation of the Full Faith & Credit clause by DOMA is a lot easier cause around which to wrangle a majority . . .

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