Historic arguments will force justices to signal support for nationwide constitutional right, legal experts say, as continuing support of marriage bans would be ‘reckless and irresponsible’
The highest court in the United States on Tuesday will hear arguments in one of the last major undecided civil rights struggles in American history – whether same-sex marriage is a constitutional right – but this particular landmark case for equality may already be open and shut.
The US supreme court has a reputation for being contrarian and unpredictable. Its key swing votes are often shrouded in mystery until decisions arrive at the end of each term.
Constitutional lawyers, however, are confident enough in the imminent future of nationwide marriage equality to insist that anything less would require an extraordinarily complex – even unprecedented – reading in stark contrast with the court’s recent history and occasionally overt political leanings.
Between the clever way the cases have been set up and the overwhelming pressure to answer to public demand, the end of state gay marriage bans is not just inevitable, court watchers say – the nine justices may be left with no other choice.
In order to rule against the gay couples and their children bringing the challenge, a majority of the justices would have to conclude that marriage is not a fundamental right with respect to straight couples, according to University of Chicago law professor Geoffrey Stone. The judges would also have to decide that there is no legal animus to state laws that limit who can get married – and that laws disadvantaging LGBT citizens are not suspect under the equal protection clause of the US constitution’s 14th amendment.
“They are just losing arguments, given where we have gotten,” said Stone.
‘Think of the chaos you would have created’
Same-sex marriage is now legal in 37 US states and Washington DC, and a record 61% of Americans fully support it . But the supreme court’s 2013 decision to strike down a key part of the Defense of Marriage Act (Doma) did not settle a key question: it remains unclear whether states or the federal government get authority in determining whether same-sex couples have a basic legal right to wed.
After years of failing to weigh in on state appeals of marriage bans, the court is finally expected to provide answers by the end of June to challenges from four states: Ohio, Michigan, Kentucky and Tennessee.
That the justices decided to pick up these cases at all, constitutional scholars say, is a strong indicator of their intention to offer a sweeping decision.
The alternative to the group appeal would have been to consider another lawsuit against a single state’s ban at a later time or to allow the lawsuits to continue running through the state court system.
Stone said it would be “completely reckless and irresponsible” for the justices to pick up all four cases only to rule that state bans on same-sex marriage are actually protected by the US constitution.
“Think of the chaos you would have created if the court now says: ‘Never mind, none of you people were allowed to get married,’” he said.
Daniel Ortiz, a law professor at the University of Virginia, estimated the chances that one of the same-sex marriage bans got upheld was “at most 5%”.
‘That will end the debate right there’
In November , the US sixth circuit court of appeals upheld the four state bans, compelling the nation’s highest court to review the cases split before another circuit court. The four-case consolidation also forced the supreme court into an unusual decision. It must now answer two separate questions:
- “Does the 14th amendment require a state to license a marriage between two people of the same sex?”
- “Does the 14th 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?”
If the court answers yes to the first question, legal scholars have said it may have forced itself – perhaps on purpose – to say yes to the second as well.
“I think that will end the debate right there,” Ted Olson, the attorney who successfully challenged California’s effective ban on same-sex marriage before the court, said Sunday on NBC’s Meet the Press .
Perhaps the only way to avoid that clear first answer on marriage equality would be dismissing or putting on hold a case it has already chosen to accept. Given that the supreme court is asked to review about 10,000 cases per year and chooses only 75 to 80 to review, such a maneuver would be incredibly unusual and has little precedent.
“There is no procedural basis that I’m aware of that they could use to get rid of the case,” said Stone, of the University of Chicago.
‘It’ll be more than five votes’
The supreme court’s three arch-conservatives – Samuel Alito, Clarence Thomas and Antonin Scalia – are expected to dissent against marriage equality as a fundamental right for a number of reasons, including their known aversion to the federal government’s involvement in state laws.
In an inevitable June dissent, they will likely argue that the constitution’s framers did not imagine the equal-protection clause might ever be used to make illegal laws that limit marriage to one man and one woman.
And while the court’s four liberals – Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer – will presumably rule on behalf of outright marriage equality, that leaves two votes.
Justice Anthony Kennedy, who wrote the majority opinion striking down the effects of Doma, has a track record signalling he will be on the side of history as well. He also wrote in a 2003 majority opinion that anti-sodomy laws are unconstitutional because they violate the right to privacy to have consensual sex.
Chief justice John Roberts – a conservative who can be a wild card – will be the one to watch on Tuesday, as the tea leaves may suggest progress in the making or an outright decision that is all but written in stone.
“I’m still optimistic it’ll be more than five votes,” Olson said.
Dale Carpenter, a constitutional law professor at the University of Minnesota, said the court delivered an underappreciated signal in favor of same-sex marriage in 2014, when it decided not to hear pending appeals from several states, effectively creating a pathway for same-sex marriage across those 37 states that have since legalized it.
If the court continues on that track, and says yes to two questions, same-sex marriage could soon be the law of the land.
“Very quickly, in the 13 or so remaining states where there aren’t currently same-sex marriages occurring, we will see state officials begin to recognize them,” Carpenter said.
There remain many pockets of the US deeply opposed to same-sex marriage – Alabama was in a state of legal chaos for weeks this year, and each of the four states before the supreme court is defending its respective ban.
But if five of the nine robed judges bend toward history, Carpenter said, the opposition may be as out of options as the justices already are: “Once the supreme court has spoken, it’s over.”
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