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Will State Marriage Equality Laws Affect SCOTUS?

AP has a story speculating on whether the rapid advance of pro-marriage equality cases in several states over the last few months will influence the result of either the Prop 8 case or the DOMA case that the Supreme Court are considering right now, with a ruling expected in about a month.

Three U.S. states and three countries have approved same-sex unions just in the two months since the Supreme Court heard arguments over gay marriage, raising questions about how the developments might affect the justices’ consideration of the issue.

In particular, close observers on both sides of the gay marriage divide are wondering whether Justice Anthony Kennedy’s view could be decisive since he often has been the swing vote on the high court.

It is always possible that Justice Kennedy is reading the newspapers and is impressed with the progress,” said Michael Klarman, a Harvard University law professor and author of a recent book on the gay marriage fight.

In earlier cases on gay rights and the death penalty, Kennedy has cited the importance of changing practices, both nationally and around the world.

As many court observers and legal scholars have noted, the Supreme Court typically lags a bit behind the public when it comes to advancing civil rights. And there is a clear analog in how the court handled laws against interracial marriage. Federal courts had refused several times to overturn such laws on equal protection grounds, most notably in Pace v Alabama in 1883, while most states had such prohibitions in place. But between 1948 and 1967, 14 states repealed their anti-miscegenation laws. Only 17 states still had such laws in 1967, when they were struck down by the ruling in Loving v Virginia.

Now, that doesn’t necessarily mean the Supreme Court will do the same thing here. But if that pattern holds, it would likely take a few of the states that passed their bans on same-sex marriage from 2004-2008 to start repealing them, which I believe will start to happen in 2014 and 2016. That’s why I’ve predicted that the Supreme Court will not issue a broad ruling striking down such laws on equal protection grounds until after that point (though I do expect narrow rulings in the two current cases that result in making things a bit better).

As usual, this case almost certainly turns on Justice Kennedy, who authored the two most important gay rights decisions in the nation’s history, Lawrence v Texas and Romer v Evans.

Comments

  1. cptdoom says

    Actually, the changes in recent laws allow the SC to not only punt with narrow rulings on the two current issues, but to set up the legal environment that will guarantee a new legal case to directly rule on marriage equality. With 12 going on 13 (depends on what happens in the next two days in IL) states now in the pro-equality camp, assuming the SC knocks down DOMA section 3 on states’ rights grounds, there will be multiple couples that will marry in equality states, then move/return to hate states with federal, but not state, legal recognition. A couple of well-placed cases and we’ll be back in front of the SC within 4 years.

    The only question is whether progressives should send free steaks, fatty foods and bacon products to Tony Scalia to speed up the inevitable cardiac illness in the intervening time period. .

  2. abb3w says

    It may also hinge on Justice Ginsburg; her recent comments on Roe v Wade being an overreach particularly seems to suggest she might be pushing for a narrower incremental ruling that does not foreclose future political shift — nor future judicial prodding. Such pretense of “well, we don’t need to deal with bigger issues, merely what’s before the court today” might get not merely Kennedy, but Roberts on board.

  3. D. C. Sessions says

    The only question is whether progressives should send free steaks, fatty foods and bacon products to Tony Scalia to speed up the inevitable cardiac illness in the intervening time period. .

    How about some all-you-can-eat memberships to places like Brazilian grills and Louisiana-fried-lard restaurants? And let’s not forget the deep-fried-everything fashions.

    Actually, looking at Clarence Thomas’ pictures lately, it looks like something doesn’t agree with him (not just us.) He’s got more gray to his skin than his hair. Liver, maybe?

  4. Pieter B, FCD says

    I can’t help but think of Misther Dooley

    “But there ‘s wan thing I ‘m sure about.”

    ” What ‘s that ? ” asked Mr. Hennessy.

    “That is,” said Mr. Dooley, “no matther whether th’ constitution follows th’ flag or not, th’ supreme coort follows th’ iliction returns.”

  5. says

    12-13 states in the pro-equality column is only about half, so the SCOTUS can easily overturn DOMA on state’s rights grounds but punt on the question of equal protection by saying that there’s “no clear consensus” on that issue yet.

  6. whheydt says

    Re: d. c. wilson @ #6…

    I think you needed a newer almanac, say one from at least the 20th century. “12-13 states” is no where near half. *If* IL goes with SSM *and* the USSC decides that Prop. 8 is unconstitutional, *then* the cound would be 14…just barely enough to stop an anti-SSM constitutional amendment ratification (assuming *every* state with legal SSM were to go against ratification).

    On the base article… There is still the chance that the USSC will punt, by deciding either that they shouldn’t have granted cert in the first place, or that the pro-Prop.8 side doesn’t have standing. (And if they don’t have standing before the USSC, did they have standing with the appeals court? It could get rather ugly sorting things out…the district court issued a very broad ruling, while the 9th Circuit issued a narrow on.)

  7. dingojack says

    On a slightly tangential note see here.
    If this model is correct then by 2016 only nineteen states will have less than 50% support for marriage equality, by 2020 that will have fallen to six (all in the deep south).

    As Ed noted in the leader:
    “And there is a clear analog in how the court handled laws against interracial marriage. Federal courts had refused several times to overturn such laws on equal protection grounds, most notably in Pace v Alabama in 1883, while most states had such prohibitions in place. But between 1948 and 1967, 14 states repealed their anti-miscegenation laws. Only 17 states still had such laws in 1967, when they were struck down by the ruling in Loving v Virginia.”

    Perhaps the courts will act faster than you think.

    Dingo

  8. abb3w says

    @7, dingojack:

    Perhaps the courts will act faster than you think.

    Within a decade, perhaps. But I repeat: given Justice Ginsburg’s remarks on Roe v Wade — while the court may act soon, there is almost zero prospect for a sweeping ruling now. She’s pretty clearly telegraphed that she won’t be on board with anything on Roe’s scale this year. Instead, she’s suggested “The court can put its stamp of approval on the side of change and let that change develop in the political process”.

    Until Ginsburg is willing to sign on (or is replaced — likely “over her dead body”), there is effectively nil chance of rulings in support of gay marriage mustering (at least) five supporting SCOTUS votes.

  9. dingojack says

    Note that that Loving v Virginia was decided when 17 states had laws preventing discrimination in cases of inter-race marriage. By 2020 it would seem likely that kind of number of states (may) have outlawed discrimination in terms of sexual preference (perhaps). It would be difficult for the court to drag their heels if this were the case, so I would give it a further few years before a significant case comes before the court and leads to a decision to remove the discrimination at the Federal level.
    It this kind of (hypothetical) scenario, ‘sooner than you think’ means around 10 years. But I could certainly be wrong* about that.
    Dingo
    ——–
    * hopefully overly pessimistic

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