Trying to predict how the US Supreme Court will rule on the highly contentious issue of same-sex marriage is a mug’s game but I will indulge in it anyway. The court will be deciding two questions:
- Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
- Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
What follows are my speculations on how all this will eventually play out based on the hearings and the past opinions and statements of the justices. The hearings can be tricky to evaluate because often the justices may seem to be pushing a point of view when what they are really doing is not advocating for that view but seeing what are the best reasons for it.
It may help to understand how the court goes about arriving at its verdicts. On the Friday following an oral hearing (i.e., today in this case), the justices get together for a conference where they take an informal vote on how they feel about the issue, whether to agree with the plaintiffs and overturn the lower court decision or reject their plea. The most senior member of each group then assigns one person in that group to draft the opinion for that group. (The chief justice is automatically the most senior member of any group of which he is a part.) For the drafter of the majority opinion, the primary task is to retain the loyalty of all members of the majority and secondarily to try and win over members of the minority. For the drafter of the minority opinion, the primary task is to try and become the majority view by drafting something persuasive enough to win over sufficient members of the other side. These drafts then get circulated and refined, with people occasionally switching sides, until it is felt that nothing more is to be gained by any further changes.
It was clear from the hearings that the lawyers in favor of same-sex marriage were targeting justice Kennedy in order to win him over. For those opposing it, justice Breyer seems to be the best hope. From the justices’ comments and their prior records, my feeling is that the vote seems to be split 4-3 in favor of same-sex marriage with justices Ginsburg, Sotomayor, Kagan, and Breyer in favor and Alito, Scalia, and Thomas against. Although Breyer seemed a little wobbly during the hearings, I think that he was, in his often opaque style, trying to see what the best arguments against same-sex marriage were and I don’t think he was convinced by that side’s lawyers.
This leaves justice Kennedy and chief justice Roberts as potential swing votes. Many supporters of same-sex marriage seem to be hopeful about Kennedy because he has advanced the cause of gay rights in three important previous cases, writing the majority opinion each time. These were the cases of Romer v. Evans (1996) that invalidated a Colorado referendum that prevented any state or local government entity from treating members of the LGBT community as a protected class (a 6-3 verdict), Lawrence v. Texas (2003) that overturned a Texas law that criminalized consensual, adult, homosexual intercourse (another 6-3 verdict), and United States v. Windsor (2013) that ruled that the US government could not deny marriage benefits to same-sex couples who had been lawfully married in jurisdictions that allowed it. It should be noted that the first two cases had justice Sandra Day O’Connor voting with the majority but by the third case she had been replaced by justice Alito who seems to be very hostile to gay rights.
Some same-sex marriage advocates see some glimmer of hope with Roberts too. It is argued that as chief justice he is concerned with how the court that is associated with his name will be perceived by posterity and this may influence his thinking. He is known to believe that the court’s legitimacy derives largely from the assumption that it dispenses justice impartially and they suggest that he is surely smart enough to realize that purely as a political matter, same-sex advocates have won and that it will eventually be part of the law of the land. For the court to come down on the wrong side of history on what is arguably the major civil rights issue of his era will besmirch his and its reputation. He may wonder if he wants ‘his’ court to be admired as the court was for its ruling in Loving v. Virginia (1967) that said anti-miscegenation laws were unconstitutional, or bear a badge of shame as it did in Dred Scott v. Sandford (1857) that said that slaves could not be American citizens and therefore had no standing to sue in federal court.
I myself am not too sanguine about either of these hopes that Kennedy and/or Roberts will rule that same-sex couples have a constitutional right to marry. They are both traditionalists and for Kennedy, even though he has been sympathetic to gay rights in the past, this may be a bridge too far. While they both seem to be willing to make sweeping decisions expanding the rights of corporations and treating them as people, they are much more circumspect about expanding the rights of actual people. The sentiments they expressed about whether it is right for the court to redefine marriage are ones I think they are genuinely concerned about. Giving their blessing to same-sex marriage is something that I think will stick in their craw and they just won’t be able to do it.
They may also well be nervous about the tidal wave of anger they will get from the religious right in this country if they say that same-sex couples have the same constitutional right to marry as opposite-sex couples. These groups have even signed a pledge promising a campaign of civil disobedience if same-sex couples are given the same rights of marriage as opposite-sex couples, though it is not clear what they can actually do. Picket same-sex weddings, like the Westboro Baptist Church? Boycott any businesses that cater such weddings? Try to pass a constitutional amendment banning sex-sex marriages? I think it is an extremely hollow threat but these people can raise a nasty stink and both Kennedy and Roberts may shy away from being at the receiving end of it.
On the other hand, all the members of the Supreme Court are members of the elite and among that class the right of same-sex couples to marry is seen as a no-brainer. These are the circles the justices move in and one cannot discount their influence. It is only the religious right and those pandering to them that oppose it and I think that all the justices are acutely aware that when you oppose same-sex marriage, you become associated with some of the most hateful people and groups in the country. Justices Alito, Scalia, and Thomas may be willing to weather that opprobrium because they seem fixed in their beliefs but Kennedy and Roberts likely not so much.
The problem for them is that the option of invalidating same-sex marriage altogether was not up for adjudication in this case and never will be a realistic option. That ship has not only sailed, it has practically reached the other port. So what are they likely to do in the end? If past decisions are any indication, I think the court will try to walk a very narrow line that will allow them to avoid making an unequivocal decision about the constitutionality of same-sex marriage. They will do what they have done with many issues involving the Establishment Clause, such as tax-exemption for religious organizations or ceremonial prayer at government meetings, where they invoked a mushy ‘history and tradition’ rationale to allow religion-based practices that should have been clearly ruled unconstitutional.
I think that they will do the same here. I think that either Kennedy or Roberts or both may be willing to sign on to an opinion in which they say that each state has the right to make its rules concerning marriage and to deny same-sex marriage (thus voting against plaintiffs on the ‘marriage question’) while they must recognize the marriages of those carried out in other states (voting in favor with the plaintiffs on the ‘recognition question’). They will claim in so many words that ‘history and tradition’ have deemed that marriage is between a man and a woman and that the court should not take it upon itself to summarily change something that has been the norm for so long and should leave it up to each state to decide. This will enable them to claim that they are not a party to redefining marriage and will be their attempt to mollify the opponents of same-sex marriage.
But they can then turn around and say that because Article IV in the US constitution requires that “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state”, the constitution requires states to recognize marriages sanctioned by other states unless there is a compelling reason to not do so and that bar has not been reached in this case. This is similar to the reasoning in Windsor where they ruled that the federal government had to recognize marriages approved by states.
Of course, the practical result of such a split verdict will be to legalize same-sex marriage across the nation since almost everyone living in a state that does not allow such marriages is within easy reach of a state that does allow them. The only way to prevent it would be for all the states to ban it, which is never going to happen. But the court can claim that that is a problem for states to address and not for the Supreme Court. They could also argue that denying recognition would result in a chaotic state of affairs as same-sex couples move in and out of states that allow same-sex marriage, and that would not be desirable.
By taking this route, the court can avoid making the more sweeping claim that same-sex marriages must be allowed by all states under the Equal Protection clause of the Fourteenth Amendment, thus expanding that clause to cover the LGBT community. They can claim that this is a much narrower Article IV ruling. The fact that during the oral arguments it was justice Scalia that raised the Article IV question and justice Alito who suggested the possibility of this kind of split opinion suggests that this may well appeal to both Kennedy and Roberts and be the end result.
What will be the political fallout of such a split verdit? The opponents of same-sex marriage will of course realize that as a practical matter same-sex marriage is now here to stay. I am not sure that they will be mollified by the fact that the Supreme Court has not actually said that marriage is no longer solely between a man and a woman and they may well be frustrated at this backdoor method of giving nationwide approval to same-sex marriages.
As for supporters of same—sex marriage, they may be disappointed that it has not been granted exactly the same status as opposite-sex marriage but may take comfort from the fact that as a practical matter their marriages have the same legal status and carry the same benefits as opposite-sex marriages, apart from the fact that some couples will have to go to another state to actually get married.
Now we have to wait until June to see.