The Supremes Take On Gay Marriage

December 12, 2012 by

Print Friendly, PDF & Email

I hated Con Law in law school. It wasn’t the results that I minded so much. At the time we were still in the afterglow of the Warren Court’s expansion of individual rights. The Court was in sync with the civil rights movement. It had recently struck down, for example, the laws prohibiting racial intermarriage that were still on the books in sixteen states. What I hated about Con Law was the attempt by professors to explain Supreme Court decisions as the logical application of legal principles, when it was pretty clear many were just result oriented political decisions. Ideology cloaked as legal reasoning. If you wanted to strike down a state law on equal protection grounds, you applied strict scrutiny. If you didn’t, you applied a rational relationship test.

It hasn’t changed, except perhaps to become more transparent. Which makes me wonder what the Supremes are up to in deciding this week to take two same-sex marriage cases – a California case (litigated jointly by the political odd couple, Ted Olsen and David Boies), which sought to establish a constitutional right to same-sex marriage, and a federal case involving the Defense of Marriage Act, which attempts to deny federal benefits to lawfully married same-sex couples.

Since only four votes are necessary for the Court to take a case, it is unclear whether it is the conservative bloc of Scalia, Alito, Thomas and Roberts, or the liberal bloc of Sotomayer, Kagan, Ginsburg and Breyer (or some combination) that voted to hear the cases. But it is pretty clear that ultimately the critical vote will be Anthony Kennedy’s. It’s impossible to imagine, regardless of precedents and logic, Alito, Scalia or Thomas voting to protect gay and lesbian rights. Nor can one easily see Roberts, despite his vote upholding health care reform, becoming a champion of gay marriage.

So it will come down to Kennedy. My guess is that it was the conservative bloc that voted to take the cases, knowing that during the next four years the composition of the court will not become more conservative than it is now. But Kennedy has written opinions striking down sodomy laws in Texas and a Colorado law prohibiting the state or any local government from passing laws to ban discrimination against gays. Nevertheless, I am skeptical these decisions will mean much to the ultimate outcomes in these cases.

What does give some hope is that the political tide has turned. A majority of Americans now support gay marriage, a dramatic shift over the past ten years. The shift is even more pronounced among those under thirty-five. They are the future, and if the history of the Supreme Court over the past forty years teaches us anything, it is that the Court does not like to be on the wrong side of history or public opinion. Its legitimacy ultimately hinges on being a moral compass with regard to contentious social issues, not just an arbiter of vague and amorphous legal principles.

So I am betting that at worst, the Court will issue narrow rulings that do not significantly hurt the cause of gay marriage nationally, and that it will more likely establish that a state created “right” to gay marriage cannot be denied by federal legislation. I think that’s the result that a majority on the Court wants, and they will find a way to get there. Or we will take a giant step backward in the fight for individual rights and human dignity for all.