The Ruling We’ve Been Waiting For?


News broke on Friday that SCOTUS will rule once again on marriage equality. Orin Kerr predicts a historic victory:

The briefing schedule indicates that the Court will hear oral argument and decide the cases by the end of June — this Term rather than next Term. I don’t think there’s a lot of uncertainty as to how the Court will rule. Justice Ginsburg’s extrajudicial statements are usually a reliable guide, and her past comments suggest that there are already five votes for a right to SSM.

Garrett Epps considers the possibility of a mixed decision:

[E]ven if Justice Anthony Kennedy’s vote seems foreordained, he must choose between the rights of gays and lesbians—an issue on which he has fashioned a historic legacy—and the prerogatives of the states, about whose “dignity” and honor he has often rhapsodized. He might be tempted to split the baby by holding for the states on the “celebration” issue but for the challengers on “recognition.” (The Court’s grant of review was careful to split the two questions.) That is, he might say, a state could refuse to perform marriages itself, but could not refuse those legally married out of state the benefits of marriage under state law.

But, in a later post, Epps downplays the chances of such a scenario:

Some justices (I name no names) seem to enjoy writing like patent-medicine pitchmen. But even those most critical of Kennedy must admit that his written opinions are achingly, crushingly sincere. He is never just President of Hair Club for Men; he is always a member too. “Recognition” and “celebration” go together like a horse and carriage. I don’t see a way to split them that would allow the Court—or its key justice—to escape this term’s rendezvous with destiny.

David B. Cruz also imagines possible rulings:

It is unthinkable to me that the Court would now turn around and tell the people who married only after it cleared the way for them to do so that the Court was wrong to do that and their marriages were void.  I suppose the Court could say, okay, couples already married are protected but other couples in any state where marriage equality exists due to court decree would henceforth not be able to marry.  …

Far more likely it is that the Court will issue a decision holding that the Constitution protects same-sex couples’ right to marry – probably by a five-to-four vote judging from the Justices’ positions in the Windsor decision (unless Chief Justice Roberts flip-flops and decides that although his Windsor dissent argued that state marriage exclusions were distinguishable from the federal law partially invalidated in Windsor, on reflection he’s concluded that’s wrong and so, accepting Windsor as precedent, the same-sex couples here win).

Brianne Gorod and Judith E. Schaeffer likewise wonder if Roberts’ vote is gettable:

Roberts has seen what a watershed decision Windsor has been, and he must surely recognize that if the Windsor majority takes the final step to recognize full marriage equality (as it should), that decision will be even more historic and undoubtedly one of the greatest legacies of the Roberts Court. Will Chief Justice Roberts be content to have such a momentous ruling be issued over his dissent, or will John Roberts want to be part of one of the greatest legacies of the Roberts Court?

Ilya Somin thinks the “prospects look good for the pro-same-sex marriage side”:

Thanks to a combination of judicial decisions and legislative changes, there are now 36 states that recognize same-sex marriage. That creates a very different situation than existed even a few years ago, when same-sex marriage was only legal in a small minority of jurisdictions.

Furthermore, both elite and public opinion have moved strongly in a pro-gay marriage direction in recent years. Even some conservative evangelicals have begun to step back from opposing same-sex marriage. The Court certainly does not always follow public opinion. But if a majority of justices are inclined to endorse a constitutional right to same-sex marriage, they are now unlikely to be deterred from doing so by fear of a massive political backlash, of the sort that would have greeted such a ruling a decade ago.

Dale Carpenter agrees that marriage equality is likely to prevail. He emphasizes that “how the Court decides to reach that result is also important”:

Nationwide legalization of same-sex marriage would be a huge victory for gay couples and their children, but it won’t immediately end discrimination against them or against gay people in general. What the Court signals in its decision about the constitutionality of other anti-gay legislation will have substantial legal effects down the road, just as the Court’s decision in Romer v. Evans put an end to growing state-wide efforts to repeal all civil rights law protecting gay people.

One of the court’s options:

The Supreme Court could clear up any remaining doubt by squarely holding that classifications based on sexual orientation are subject to heightened (or close or searching or intermediate) scrutiny. The analysis would be: first, laws denying marriage licenses to same-sex couples are a form of sexual-orientation discrimination because of the close connection between the classification and sexual orientation (like the connection between yarmulke-wearing and Jewishness); second, laws discriminating against gay people raise the usual concerns that justify heightened scrutiny; and third, the state can’t justify the discrimination under the heightened standard.

A suspect-classification decision would logically dispose of proposals like MARFA, the Virginia anti-gay licensing bill, and the anti-gay government-workers bill in Texas. Laws like that would then either be declared unconstitutional as written or would have to be written so as not to target same-sex couples, in which case they might be subject to other constitutional attacks.

Steve Sanders expects that the “question of animus will be prominent – perhaps pivotal – in this final phase of marriage litigation”:

So far, the arguments made by plaintiffs have been remarkably sterile, emphasizing formal equal protection and due process arguments and failing to say much about how the mini-DOMAs actually came into being. But such a picture is incomplete. To fully consider the constitutionality of the remaining anti-marriage laws, we must lift up these proverbial rocks to see what was festering underneath them.

And Richard Socarides looks beyond the ruling:

It’s not unreasonable to expect that the Supreme Court will make same-sex marriage legal in all fifty states. The question, for longtime marriage-equality activists, is what exactly will this achieve, and what will happen next? Will nationwide marriage equality lead in time to full nationwide acceptance, or will they discover, like many civil-rights activists before them, that there is a big gap between legal rights and true equality? This is a big moment for the gay-rights movement, and an important one in which to remember that there is likely more struggle ahead.

(Photo: A same-sex marriage supporter has her forehead painted with rainbow colors as she joins demonstration in front of the Supreme Court on March 27, 2013 in Washington, DC. By Jewel Samad/AFP/Getty Images)