I believe that we will look back on today’s arguments before the US Supreme Court as one of the landmark historic days for civil rights in of our time. Today, the Court will hear arguments in the case named Obergefell v. Hodges — the combined six cases pending on various aspects of the marriage equality questions. Arguments will center around two primary questions. One, whether it is unconstitutional for states to ban same-sex marriage, or stated another way, whether there is a constitutional right to marry by same-sex couples that overrides the states that wish to ban such marriages. Then, if there is not a constitutional-level right to marry and states may pass laws banning such marriages if they choose, then must states recognize marriages lawfully performed in other states that do recognize same-sex marriage?
Speculation will abound today about what might happen. Lawyers and media folks will look for clues in the questions asked during the argument, the tone of voice, pregnant pauses, and even questions not asked — maybe something will signal the outcome. Of course, none of that is reliable or even predictive of the actual outcome. Yet, we almost can’t help but speculate.
Windsor case signals outcome
The Windsor case from two years ago gives some clues as to the possible outcome. In that case, the US Supreme Court held section three of the federal Defense of Marriage Act unconstitutional, thus extending federal benefits to same-sex couples. The Court extended the Constitutional Due Process of equal protection to same sex couples in handing down this ruling. That part of Windsor is what signals clues to the ruling in today’sObergefell case. The same arguments for equal protection in Windsor should apply to Obergefell and apply to strike down the state bans on same-sex marriage.
Justices leanings signals outcome
Another signal as to the likely outcome of the Obergefell case is the split of the Justices from Windsor and the known or usual leanings of those Justices. Typically, Justices Ginsberg, Breyer, Sotomayor, and Kagan lean to the liberal side and are expected to hold the marriage bans unconstitutional (so, yes and yes to the questions presented). On the other side, Justices Scalia, Thomas, and Alito are the conservatives and are expected to vote as they did in Windsor, upholding state’s rights to pass laws banning same-sex marriage without acknowledging the laws of states that recognize same-sex marriages (so, no and no to the questions presented).
Justices Kennedy and Roberts are the crucial swing votes in this case who will actually decide how the case comes out. Justice Kennedy, the Court’s most moderate Justice, voted with the liberal wing in Windsor and authored the majority’s opinion. Kennedy wrote, “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.” Justice Kennedy’s legacy will show his favor for gay rights starting as early as 1996 when he wrote the Court’s opinion in Romer v. Evans invalidating a Colorado law against homosexual rights. He also authored the Court’s opinion in this historic Lawrence v. Texas case, which extended Due Process to homosexual people and banned laws criminalizing homosexual conduct. However, Justice Kennedy is also a state’s rights advocate. So, here, where state’s rights to pass laws is at direct odds with the Due Process rights of same-sex couples, Justice Kennedy could be conflicted. This may be the reason the questions are presented in two-parts, where an affirmative answer to the second question compromises the ability to acknowledge state’s rights but also the rights of same-sex couples.
Justice Roberts’ vote may also be on the table in Obergefell. In Windsor, Justice Roberts refused to sign off on the dissenting opinion and wrote his own dissent. He did not go so far as to agree with the conservative wing on the breadth of state’s rights, and seemed to leave a window open for the Constitution to trump state’s rights given the right set of facts before the Court. As Chief Justice, this Court will bear his name — known in history as the “Roberts Court”. So, his namesake and legacy will be known, at least in part, for this landmark decision. With the tide of public opinion so overwhelmingly changing on the issue of marriage equality, many doubt that Justice Roberts will want history to mark him as opposed to marriage equality, which may sway him to vote with the majority. On the other hand, as a state’s rights advocate, he may not go so far as to find a Constitutional deprivation of Due Process sufficient to override the state’s rights to pass laws. So, question two, requiring acknowledgement of other state’s lawful marriages — in other words, granting full faith and credit under the Constitution to lawful marriages — could be his compromise.
The ruling on Obergefell is expected in late June, but before the end of the US Supreme Court’s term.