On Sunday night, JT Eberhard surprised me with a phone call in the middle of his podcast to ask me about the Supreme Court’s decision to hear two cases involving marriage equality. That prompted me to do some thinking about how the court will rule. Here are my thoughts on that question.
First, I think it’s pretty unlikely that the court will issue a broad ruling saying that the 14th Amendment requires the federal government and the states to legalize and recognize same-sex marriages. I think that would be a real departure both from the historical pattern in similar cases and against the nature of the current court. William Eskridge and Hans Johnson look at the historical precedent:
Today, public opinion has shifted dramatically away from overwhelming repugnance at marriage equality, toward overall support for the idea. Confirming this shift last month, voters in Maine, Maryland, and Washington endorsed marriage equality in their states through popular initiatives, with Mainers revising their constitution to do so. And the voters in Minnesota rejected an anti-equality amendment to the state constitution, a campaign for which opponents of marriage had prepared for several years.
The election of 2012, demonstrating that it is safe for most politicians to support complete equality for sexual and gender minorities, finds a parallel in the election of 1964, which demonstrated that it was safe for most politicians to support complete equality for racial minorities. Three years after 1964, the Supreme Court in Loving v. Virginia swept away all state laws denying marriage equality to interracial couples…
The Warren Court declined to disturb anti-miscegenation laws in the 1950s, when three-fifths of the states had laws barring different-race marriages. Bowing to the blatant affront to minority citizens, lawmakers in half of those states repealed their statutes between 1957 and 1967. When the Court did act, in Loving, its insistence on marriage equality for interracial couples had greater bite because the nation’s public law conversation was coming to an end on this issue.
In the first half of the 20th century, 47 states had laws banning interracial marriage and, as they note, the Supreme Court did not act to invalidate those laws until 1967, by which time only 16 states had such laws. I think we are just at the beginning of that pattern with same-sex marriage. 32 states quickly passed laws prohibiting same-sex marriage between 2004 and 2010. In 2012, four states went in the opposite direction.
I think we’ll start seeing more states repeal their bans starting in 2014 and by 2020, I expect them only to be in place in the most conservative states, mostly in the South. After that point, and only after that point, I expect the Supreme Court to issue a broad equal protection ruling making equality the law nationwide. As one wise wit put it, the Supreme Court likes to be the last player in on a gang tackle, running in at the last second to jump on top of the pile while yelling “let’s do some justice here!”
So what do I think the court will actually do? I think there are three possibilities.
Worst case scenario: The court rules, probably 5-4, that both Prop 8 and DOMA are constitutional under the rational basis test. This would be a bad result, but not fatal to marriage equality. The trends in public opinion could not be more clear and the momentum is all on the side of equality. I see nothing that could realistically change that. And just as the Supreme Court’s refusal to overturn miscegenation laws in the 50s and to overturn sodomy laws in the 80s did nothing to prevent them from reversing themselves in 1967 and 2003, respectively.
Middle case scenarios: There are actually several here. In both cases, the court clearly left themselves outs to decide the cases on purely procedural grounds (jurisdiction and standing) and avoid ruling on the merits. They could do that in one or both cases. That would delay any final decision, but there are at least nine more cases working their way through the courts and they likely aren’t all going to be dismissed on such grounds.
There are other middle case scenarios, especially on the Prop 8 case. The court easily issue a very narrow ruling in that case that upheld the lower court decision but does not legalize same-sex marriage in other states. Kenji Yoshino explains how they might do that.
Best case scenario: Since I don’t think the court is likely to legalize same-sex marriage on federal constitutional grounds, here’s what I think is the best scenario that is reasonably likely. The court could issue a narrow ruling in either case that falls short of deciding the ultimate issue but explicitly names sexual orientation as a suspect class, thus requiring the courts to apply heightened or intermediate scrutiny when evaluating the constitutionality of laws that affect the LGBT community.
That would be very, very important, maybe more important even than finding that same-sex marriage must be legalized nationally. It would mean that every single legal challenge to any law that affects gay rights must apply a more difficult standard to the government’s case. This would then buy the court a few years before having to issue a broad ruling, based on that standard, that invalidates laws that ban same-sex marriage.