Why the Supreme Court
will bless same-sex
unions this time
Supreme Court Justice Anthony Kennedy is seen as a pivotal vote on gay marriage.
Wedding bells will soon ring from coast to coast as the US joins the small fraternity of about 20 civilized nations where same sex marriage is legal.
A decision is imminent in the most closely watched Supreme Court case in recent memory – its consideration of same sex marriage. Few doubt the result.
For students of the Supreme Court and those knowledgeable about the history of marriage equality, the outcome may be an anticlimax.
New legal precedents and rapid social change make it almost certain that a 5-4 majority of the justices will find a constitutional reason to recognize gay marriage everywhere in the US. It may even be a 6-3 vote.
In the two years since the Court overturned the federal Defense of Marriage Act on constitutional grounds – while declining to intervene on state laws banning same sex marriage – legal and social developments have dramatically changed the landscape.
These changes make it much easier for the Court to now rule that state marriage laws must equally protect all citizens and therefore cannot discriminate against same sex couples.
About two weeks before the Court’s momentous 2013 decisions, we predicted the outcome in the post How the Supreme Court may rule on gay marriage
“Informed observers are reaching a consensus: the Court will punt on Hollingsworth vs. Perry (the Proposition 8 case), leaving the decision of the Ninth Circuit in place and restoring same sex marriage rights in California. And, it will strike down the federal Defense of Marriage Act,” we wrote on June 4, 2013.
“If Las Vegas bookies were taking bets, the smart money would wager that the Court denies standing to the plaintiffs in Hollingsworth, and declares DOMA unconstitutional in a 5-4 decision, with Justice Kennedy concurring separately.”
The only error was that Kennedy actually authored the majority opinion, instead of writing a separate one.
This time will not be very different, but for different reasons.
The New York Times story on the Appellate Court’s decision overturning Utah’s gay marriage ban.
The first is the new legal precedents decided in the past two years. Numerous federal judges at both the district and appellate levels have used the Supreme Court’s own arguments in US v Windsor (the DOMA case) to find a constitutional protection for same sex marriage and toss out many state bans.
Perhaps most significant was a June 2014 decision of the 10th Circuit Court of Appeals. It was reported in The New York Times story Appeals Court Rejects Utah’s Ban on Gay Marriage, Prodding Supreme Court
“[L]egal observers said the Utah ruling was significant because it was the first time a federal appeals panel had found that same-sex couples have a constitutional right to marry.”
“The opinion was animated by other gay rights cases, in particular a Supreme Court ruling last June that struck down part of the Defense of Marriage Act, which had denied federal benefits to same-sex couples.
“That case, US v. Windsor, was a landmark victory for supporters of gay rights, but it did not address the question of whether it is unconstitutional for states to ban same-sex marriages.”
The Times story also notes an earlier district court case. “In the Indiana case, a federal judge in Indianapolis ruled that the state’s ban on same-sex marriage violated the United States Constitution. The judge … noted the string of federal rulings in issuing his own decision.”
“In less than a year, every Federal District Court to consider the issue has reached the same conclusion in thoughtful and thorough opinions — laws prohibiting the celebration and recognition of same-sex marriages are unconstitutional,” Judge [Richard] Young wrote.
Also of great significance is the startling change in public opinion on the issue since 2013.
The Pew Center’s most recent public opinion poll on gay marriage.
Just this week, the authoritative Pew Research Center release a new poll showing Support for Same-Sex Marriage at Record High
“[P]ublic support for allowing gays and lesbians to marry legally continues its rapid rise: A 57% majority of Americans now favor allowing same-sex marriage and 39% oppose. As recently as five years ago, more opposed (48%) same-sex marriage than supported it (42%),” the poll found.
“This is the highest level of support measured for same-sex marriage in nearly 20 years of Pew Research Center polling of the issue.”
While the Supreme Court officially does not factor public opinion into its decisions, it also does not turn a blind eye to it. In fact, after the 2013 decisions, many pundits said the court was reluctant to get too far ahead of the public and impose its will on reluctant states.
So, in Hollingsworth v Perry, it left the matter of recognizing same sex marriage up to the states. Since then, the number of states where same sex marriage is legal has exploded – and the sky has not fallen.
Massachusetts was the first state to legalize same sex marriage in 2003, and by late 2013, thirteen others plus the District of Columbia had followed suit. New Jersey was the fourteenth, joining the group in October, 2013.
Today, it is legal in about 36 states to some degree.
Thus, if the Court now rules that same sex marriage is constitutionally protected, then it would be changing the law in less than one-third of the states; just two years ago it would have affected two-thirds of them.
The clearest indication of the way to court is likely to vote came during oral arguments on the case in April.
As reported in The Washington Post story Supreme Court hears arguments in historic gay-marriage case five of the nine justices seemed sympathetic to the plaintiffs. Most significant were the comments of Justice Anthony M. Kennedy, seen as the crucial fifth vote needed for a majority. He was also the crucial vote in the 2013 DOMA case.
“The Supreme Court’s historic consideration Tuesday of whether the Constitution protects the right of same-sex couples nationwide to marry seemed to come down to a familiar arbiter: Justice Anthony M. Kennedy,” the Post reported.
Also significant, Chief Justice John Roberts was said to be “the member of the court who most seemed during arguments to be searching for middle ground …”
With just over two weeks left for the current Supreme Court term, a decision is imminent. One does not have to be a legal scholar to be optimistic that this time the Court will unequivocally find that the Constitution protects same sex marriage and that bans on it violate the equal protection clauses.
It will be a welcome if delayed development.
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