(AP/Dave Tulis/Larry Downing/Photo montage by Salon)

SCOTUS' gay marriage mystery: 3 surprises awaiting its upcoming ruling

We can bet that marriage equality will be allowed to go forward. But here's why the decision is still unpredictable


David S. Cohen
February 13, 2015 7:22PM (UTC)

 

 

 

 

 

 

 

 

This week’s actions at the Supreme Court allowing same-sex marriages to go forward in Alabama along with Justice Ginsburg’s comments this week about the country being ready for gay marriage may have made the ultimate outcome of the marriage equality issue in the Supreme Court more obvious, but there are still uncertainties. The uncertainty just isn’t about the outcome -- but other factors.

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Here’s that list of uncertainties:

1) While we should be confident about the outcome, it’s hard to predict the reasoning.

With the caveat that there are never bomb-proof guarantees at the High Court, we should be as confident as possible that the Supreme Court will rule for equality.  There are many reasons for this confidence.  As a political matter, public polling is strongly in favor of same-sex marriage, well over a majority of states have same-sex marriage, and the country has not fallen apart as a result.  For those who believe the Supreme Court follows the polls, the discussion ends here.

For those who think the Supreme Court does more than that, the evidence is just as convincing.  Justice Kennedy, the ostensible swing vote on the Court, has authored three opinions strongly in favor of gay rights over the course of his career.  Those opinions would become a footnote in his biography if he voted against gay rights now.  Moreover, the Court has let marriages happen all over the country in the past year, now including Alabama, the 37th state with marriage equality.  It would be cruelly hypocritical to now swipe the rug out from under those couples who have relied on the Court’s passive allowance.  History would judge the Court that did this harshly.

It won’t happen.  The Court will rule for equality.

As much as we know the outcome though, the reasoning is up in the air.  There are many different constitutional arguments for same-sex marriage.  Lower courts that have decided the issue over the past year and a half have almost unanimously decided for equality, but their reasoning has been a hodgepodge of these arguments.

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Think bans on same-sex marriage are discriminatory against gays and lesbians?  Lots of lower courts agree with you.  Think bans on same-sex marriage infringe on the fundamental right to marry?  Others agree with you on that point.  Believe bans on same-sex marriage are wholly irrational because they’re based on animus?  Still others think that’s true.  Convinced bans on same-sex marriage are a form of sex discriminationSome judges are with you there.

There are almost endless variations of these arguments, and from a legal standpoint, they’re all supported by the case law and very compelling.  Any one of them (or even some combination) might be the basis for the Supreme Court’s coming ruling for marriage equality.

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We just don’t know which one it will be.  Court-watchers would be astute to favor the irrational animus argument because that has been a favorite of Justice Kennedy’s over the years, but there’s no guarantee that would be the reasoning for marriage equality.

2) While we should be confident about how 8 Justices will vote, it’s hard to predict Chief Justice Roberts.

The outcome is in the bag because we know that Justice Kennedy will be joined by the Court’s four more-liberal Justices - Ginsburg, Breyer, Sotomayor, and Kagan.  They will undoubtedly be opposed by Justices Scalia, Thomas, and Alito.  Justices Scalia and Thomas have long been scathing in their attacks on gay rights.  Justice Alito does not have their track record, but his dissent in Windsor, the 2013 case that struck down the law defining marriage for federal purposes as between a man and a woman, made it clear that he did not believe the Constitution guarantees a right to same-sex marriage.

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That leaves the Chief.  He also dissented in Windsor, but his dissent was limited to explaining why the majority opinion should be read narrowly, as about federalism rather than as about the substantive question of whether states can ban same-sex marriage.

You can read that opinion one of two ways.  The most charitable reading is that the Chief wanted lower courts interpreting Windsor to be cautious for basic reasons of judicial prudence.  The least charitable reading is that the Chief agrees with the other conservatives and was providing a way for lower courts to distinguish Windsor and rule against same-sex couples.

Beyond his Windsor dissent, we also have the Chief’s actions over the past half year.  He presumably did not vote for the Court to review the lower court cases that found in favor of same-sex marriage.  He also, presumably, has repeatedly voted, like he did yesterday with Alabama, against the Court blocking the implementation of same-sex marriage when states asked it to do so.

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These actions may indicate that he has realized where this issue is going and wants to be on the right side of history.  But then again, they could just show that he wanted the Court to wait until its hand was forced before issuing a ruling.

Either way the Chief goes, his vote will be irrelevant to the outcome.  A 5-4 ruling is just as binding on the country as a 6-3 ruling.  His vote could possibly change the reasoning though.  If he joins the majority, he would have the seniority to assign which Justice writes the opinion, possibly placing himself in charge of crafting the Court’s reasoning.

3) While we can be confident there will be a scathing conservative dissent, we don’t know whether there will be a strong liberal defense of equality/marriage.

When the Court rules for marriage equality, there is no doubt whatsoever that Justice Scalia will write a blistering dissenting opinion arguing that the Constitution is weeping, democracy has been destroyed, and the America we know and love will come to an end.  Justice Thomas will join him, and Justice Alito will write his own less-vitriolic but nonetheless still bigoted dissenting opinion.

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Will we get any rejoinder from a liberal Justice?  Will we read a proud and loud concurring opinion declaring equality for gays and lesbians?  Will we have an opinion that talks glowingly about the fundamental liberty of choosing to marry who you love?  Will we have a voice staking out the position that same-sex marriage bans are rooted in the same gender hierarchy that brought us coverture and marital rape?

So far, in the Court’s three decisions squarely facing issues of gay rights, the liberal Justices have remained strikingly silent.  Every moderate and conservative Justice on the Court has written something about gay rights and the Constitution.  Not a single liberal Justice has done so.  In Windsor, Lawrence, and Romer -- nothing from the Justices most likely to give a ringing endorsement of basic principles of equality and liberty.

The outcomes of those cases (and the coming decision for same-sex marriage) wouldn’t change with such a concurring opinion, but the country suffers nonetheless.  By remaining silent, the liberal Justices deprive future courts authority for a more progressive path toward equality.  They also deprive gay and lesbian Americans and their allies the chance to read a stirring pronouncement about their dignity from one or more of the highest judges in the land.

*****

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Rest assured, the Supreme Court is very likely going to make history by ruling in favor of marriage equality this June.  That much we can be confident in.  But these other questions make the case intriguing still.


David S. Cohen

David S. Cohen, associate professor at the Drexel University Thomas R. Kline School of Law, is co-author of a forthcoming book about anti-abortion terrorism, and was co-counsel for plaintiffs in Ballen v. Corbett. Follow him on Twitter at @dsc250.

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