How Marriage Equality Can Still Lose

Waldman outlines “one scenario by which what today seems like an inevitable forward movement for marriage equality could be undone”:

It involves a Republican winning the White House in 2016 and a liberal justice retiring, to be replaced by a conservative. This isn’t some remote possibility.

We have no idea what the election of 2016 will be like, and while as a liberal you probably think that the current crop of Republican contenders are a bunch of bozos, people thought that about any number of people who ended up winning the White House (see Bush, George W.). As of now, Ruth Bader Ginsburg is 81, Stephen Breyer is 76, Sonia Sotomayor is 60, and Elena Kagan is 54. Any one of them could retire for any number of reasons. And once President Rand Paul appoints Ted Cruz to take that retiree’s place, things look very different.

Ilya Somin says that “while this scenario is possible, I don’t think it is all that likely”:

Even if the GOP does win the presidency in 2016 (which is far from a sure thing), Ginsburg and Breyer would likely try to stay on the Court long enough to decide the gay marriage issue. It could very well be decided even before the 2016 election happens. Finally, a close 5-4 decision upholding laws banning gay marriage may not last for long. If public and elite sentiment continues to turn against such laws, the ruling would likely suffer the same fate as Bowers v. Hardwick (1986), which upheld anti-sodomy laws, but was widely reviled and got overruled in 2003. In this case, the tide of opinion is moving faster, and a reversal could happen sooner than that.