Why the Supreme Court Is Likely to Rule for Gay Marriage

The swing vote, Justice Kennedy, has been the court's most steadfast supporter of gay rights

  • Share
  • Read Later
NOAH BERGER / AFP / Getty Images

Kris Perry and Sandy Stier, plaintiffs in a lawsuit challenging California's same-sex marriage ban, pose in San Francisco on March 21, 2013. The couple, together for 13 years, will travel to Washington as the US Supreme Court considers their case.

The Supreme Court hears arguments tomorrow in two historic cases about whether same-sex couples have the right to marry. It is always difficult to predict Supreme Court rulings, but there is good reason to expect some kind of victory for marriage equality. The main reason: Justice Anthony Kennedy, the man who is likely to cast the deciding vote.

The court is considering challenges to the Defense of Marriage Act, which bars the federal government from recognizing same-sex marriages, and Proposition 8, the California ballot initiative that bans same-sex marriage in that state. These challenges are historic: though state and federal courts from Alaska to New Jersey have considered same-sex marriage, the Supreme Court has never heard a case about it.

(MORE: Why Republicans Are Saying “I Do” to Gay Marriage)

The Supreme Court is known for its sharp partisan divide. The four-Justice liberal bloc is likely to be sympathetic to gay marriage, while the four-Justice conservative camp is likely to be hostile — though how Chief Justice John Roberts will come out is far from certain. In the middle is the court’s usual swing Justice, Justice Kennedy, who has — surprisingly — been the court’s most steadfast supporter of gay rights.

A Reagan appointee, Justice Kennedy is no liberal, as he has shown on issues from affirmative action to corporate campaign spending. But he has repeatedly sided with gay litigants before the court. In 1996, early in the gay-rights legal revolution, he wrote the majority opinion in Romer v. Evans, striking down a Colorado constitutional amendment that prevented localities from passing laws protecting gay people from discrimination. In 2003, he wrote the landmark ruling Lawrence v. Texas, which struck down Texas’ law against gay sex.

(MORE: What Will Justice Kennedy Do?)

It is not clear why Justice Kennedy — who has not been a particular friend of racial minorities in civil rights cases — has been so sympathetic to gay rights. One factor could be that, as a law professor told the Los Angeles Times, he is a “California Establishment Republican” who has traveled “in circles where he has met and likes lots of gay people.” A new Pew Research poll found that the biggest factor in changing people’s minds in favor of gay marriage is knowing a gay person.

Or it could be other factors: people have all sorts of reasons for the beliefs they hold. What matters is that in Justice Kennedy’s case, the sympathy for equal rights for gay people seems both sincere and deeply held. In his 2003 opinion striking down Texas’ sodomy law, Justice Kennedy not only said that the court’s 1986 ruling upholding a similar Georgia law was wrong — he insisted that its “continuance as a precedent demeans the lives of homosexual persons.”

As they say on Wall Street, past performance does not guarantee future results, but it would be surprising based on Justice Kennedy’s rulings so far if he did not side in some way with the supporters of gay marriage. If he is joined, as expected, by the court’s four liberals – Justice Ruth Bader Ginsburg, Justice Stephen Breyer, Justice Elena Kagan and Justice Sonia Sotomayor — there will be five votes on the court sympathetic to the pro-gay-marriage side.

Those five Justices could well unite to hand down a sweeping, Brown v. Board of Education–style ruling that the Equal Protection Clause requires all 50 states and the federal government to recognize same-sex marriage. But there are many reasons that, owing to the specifics of the cases, the Justices might do less. One option for the court in the Proposition 8 case is to say the parties do not have legal “standing” — and that they should not decide the case at all. (That would leave in place a lower-court ruling allowing gay marriage in California.)

Even some supporters of gay rights suggest there might be good reasons for the court to move slowly. They argue that gay marriage is doing well right now in the political process — and that it will eventually be adopted nationwide through legislatures and referenda. And they caution that having the Supreme Court order it could create the sort of backlash that emerged in 1973, after Roe v. Wade struck down abortion restrictions nationwide.

In the end, the law is what five Justices say it is — and based on Justice Kennedy’s track record, there may be the votes for a far-reaching decision. Justice Kennedy has not been particularly tentative in his gay-rights rulings in the past — he has written two landmark decisions and this could be his third. If Justice Kennedy is disturbed when the law “demeans the lives of homosexual persons,” he may be eager to provide the deciding vote to usher in marriage equality.

248 comments
PaulETooleySr
PaulETooleySr

Katherine:

I am an educator, and from your procacious and prolegomenon remarks you betray your own statements.

Your attitude has commendable elements; however, the remainder of your letter suggests literary stercoricolous.

KatherineKostreva
KatherineKostreva

This thread is distressing, particularly the words of @PaulETooleySr. I can see from your profile photo that you are an elderly gent, and from your scriptures, steadfast in your ways. I am Catholic. I believe in God. I also believe in love, generosity, kindness, empathy, equality. Judge not lest you be judged, ie, be willing to be judged in the same standard of judgement. This is a warning against self deception and hypocrisy, both largely evident in your posts.

Any type of religion is to be practiced privately, not to be vomited upon others via social media. Christianity is archaic, lead by a divinity of men who do not allow female priests and force themselves into a life of celibacy, only to commit mortal sins of adultery themselves. They cling to their Bible, and for what? Assurance of their own self purpose.

We are in an era of great change. We as people must accept those around us as each was intended. Whether gay or straight, it is not your business. It is not your jurisdiction. It is not your personal right to shun them, to demean them, to denounce their rights as living, breathing human beings. Who are you to declare that religion holds all the answers, and that Gays will suffer the wrath of God on their day of judgement? You are as archaic as your predecessors.

While a great many people are accepting, you are clearly not. How sad to carry that attitude into the twilight years of your life.


PaulETooleySr
PaulETooleySr

Religion is based on principles for living. There are two sides in a battle going on in the universe. One is good; the other is bad. The choices and decisions of each individual will be such that they will choose which of the two sides they'll endorse. So, yes; it is important which side you choose; The Great Controversy Between Good and Evil is the factor(s) inherent in all determinant factors for human life. One cannot take religion out of anyone's life One is born with it. So, on the Good side one can have the force of love(God) to assist them. On the Bad side one has the promoter of the love of force (Satan) to destroy them. Gays, who practice the misuse of sexual purpose, have chosen the side of the one who promotes the love of force (Satan) as their leader. It is no wonder that those who choose the love of force (Satan) demonstrate and plead for equality with those who have chosen God over Satan. This is applicable only to those who are activists in promoting the homosexual life style. True Christians do not hate anyone, they discountenance the principle of male to male, or female to female in the marriage concept. 

PaulETooleySr
PaulETooleySr

Of course not, someone said I said that, they were mistaken. My folks were all democrats and would I say they were Satanic? My complaint was that while our country was built on republican principles; except for the blue dog democrats, the democratic principles counter the republican principles and they cause people to have a country of spend, tax, spend tax, and spend tax. Every time the democrats are in responsible positions; i.e.President, Congress, or wherever, the country has problems: I have lived under them often since FDR and I see again, under Obama, hard times in America. The republicans always have to follow them so they get blamed for setting the records right again. God loves all peoples and whatever happens, He's the putter up and taker down of nations! Our years are three score years and ten, or basically four score, then we're finished as individuals. Good and evil continue, generation after generation until there is a last generation, and Planet Earth , as we know it, is done. Depending on our choices and decisions will determine whether we are resurrected to live in a new earth, or are burned in hell fire, along with the perpetrator of evil (Satan) and his cohorts. Sin and sinners are no more!

RoedyGreen
RoedyGreen

The objection to gay marriage is purely religious. It is an attempt to use the law to impose religious superstitions on non-believers. It is a violation of freedom of religion. It is in principle no different than using the law to enforce circumcision or attending mass. Christians historically have been big on scapegoats: Samaritans, Jews, blacks and now gays. Christians get a perverse pleasure out of forcing gays into second class status. They enjoy blocking a gay couple from visiting in hospital. They enjoy excluding a gay partner from a funeral. They enjoy claiming gays are subhuman and hence have no right to marry, even though those marriages would have zero effect on Christians. This is simple spite. You think Christian would be ashamed to be so blatant about their petty cruelties.

 

lbjack
lbjack

With a blithering idiot like Cohen as a Yale law prof, no wonder America is sinking into mediocrity. The law is NOT what five justices say it is, it's what the what the opinion says it is. And that's where lawyers and lower courts look for guidance, not just the way the ruling went. There might even be one or more concurring opinions, in which case the ruling opinion may not be the majority opinion at all.

jck747
jck747

There's not going to be any "far-reaching" ruling; the Court is sensitive to encroaching on the states and the democratic process and decides cases on the most narrow basis they can, never deciding anything they don't have to.

ronhat10
ronhat10

As far as I know, there is no right to be married in the Constitution. Just like driving, it is a privilege. Let's leave it up to the states, your state doesn't allow it, move. Best not to let the federal government start poking around in your business.

AngeloAmadio
AngeloAmadio

How the USSC will rule on Prop 8 and DOMA and Why: 

Sweeping reform as in Brown v. Board of Education is likely and the USSC will not leave LGBT rights to the political process of the States.  One reason is that all the States are not likely to legalize same sex rights, (no matter what, be it marriage, or domestic partnerships). For example Mississippi just ratified the 13th Amendment abolishing slavery.  It took Mississippi 148 years to abolish slavery! Anyone thinking the political process will work for LGBT rights in states such as Mississippi are delusional.  The political process will NEVER work in states where abuse and suppression of minorities is common practice.  Another reason is Justice Kennedy, who supports LGBT rights and has written two majority opinions in the past, (Lawrence v. TX and Romer v. Evans). Should Justice Kennedy continue with his past record of supporting LGBT rights then he will vote with the liberal voting bloc and likely be the deciding vote. Then there is Chief Justice Roberts who has lesbian cousin and she will be present at the oral arguments with her long term partner.  Both Justice Roberts and Justice Kennedy are conservative. However, with Justice Kennedy supporting LGBT rights in the past and with Justice Roberts allowing his cousin and her partner to be present for the arguments one has to wonder, is it possible for both Justices to side with the liberal minority giving LGBT rights a major victory?  Justice Roberts is not afraid to side the the minority voting bloc in issues wither national sweeping reform will result. Example, Obama Care.  Finally, jurisdiction for Prop 8 could be an issue, but it wont be.  Prop 8 is not likely to be dismissed for lack of jurisdiction.  Why would the USSC schedule on full day for arguments on Prop 8 if the proponents lack jurisdictional standing? Why would the court allow so many parties to file amicus curiae (friend of the court briefs) if it were going to bounce Prop 8 on jurisdictional grounds.  It would not. Otherwise this would be a huge waste of time and resources.  

To conclude, Justice Roberts and Justice Kennedy will likely vote for sweeping reform of LGBT rights by finding both Prop 8 and DOMA unconstitutional.  The final vote will be 6-3 in favor of finding Prop 8 and DOMA unconstitutional with the thee dissenting Justices, Alito, Thomas, and Scalia. It is possible for the vote to be 5-4 if Justice Ginsburg does not support national sweeping reform, which traditionally she is against.  Either way the vote will be 6-3 or 5-4 finding unconstitutional Prop 8 and DOMA and thereby providing full Equal Protection (including the right to marry) in all states to the LGBT community.  

kudakups
kudakups

It never ceases to shock me how so many people with a holier-than-thou attitude lack empathy for those that are different from them, to the extent that they feel the urge to somehow curtail the freedom of law-abiding citizens. They often use "God" and religion to justify animosity and perpetuate paranoia. A society in which people are more comfortable seeing two men holding guns rather than two men holding hands is not worthy of the virtuous "God" it proclaims to serve, because the respect of human lives, freedom and dignity comes before the imposition of narrow-minded personal views. We are witnessing history!


jdlance971
jdlance971

I think we can anticipate the SCOTUS ruing in favor of Gay Marriage.  The writers of the Constitution, I am convinced had no earthly concept of such an issue ever arising in their lifetime or in the future.  But here it is.  I for one see the SCOTUS on the verge of approving another concept that is totally alien to the Scriptures of the Holy Bible.  We live in a time where we have seen the premeditated deaths of over 50,000,000 children as a result of Roe v. Wade.  Now we are on the threshold of overthrowing thousands of years of human morality and belief.  Those of us who disagree with past SCOTUS decisions and who anticipate the approval of yet another decision, see a greater widening in the body of the American politic.  This issue will not go away as we have seen in those who morally oppose Roe v. Wade.  The country is on thin ice as a unified body.  Division will become more severe as time passes.  Dangerous times are ahead for this crumbling Republic.

PaulETooleySr
PaulETooleySr

I am opposed to the idea that male and female, which has established this planet's human lives under God Almighty, should; by humans, choose to accept God's enemy--the former Lucifer-- now called Satan, as their hero, and cut off the life stream for human population. I pray that the Supreme Court of the United States of America will not allow that to happen. However, I realize that Satan's agents are involved in the leadership of all branches of any organization that is to benefit people, and will capture the minds of leaders in those organizations, whether they be church or government--God's two mighty powers; and may by any such action that accepts Satan's way to bring about the demise of this planet. Scripture reveals that there will be a time of trouble such as has never been since there was a nation; just previous to Christ's return. May God overrule the actions of Satan, and not allow him access to the minds of our Supreme Court Justices, that is is my prayer!

aboutbebout
aboutbebout

If this passes, say goodbye to American life as we knew it.

StephenKirbyTerrell
StephenKirbyTerrell

As a gay man I have one major issue here, why are we calling it "gay marriage?" its just marriage, equal protection under the law.  I believe that using this term is ultimately more harmful than anything.  We don't want "gay marriage," we want equal rights. 

I am not much of a religious person.  I don't want to get married in your church, and I'm sure you don't want me there.  That is alright, and I respect that.  But we do require that we have the same protections as our heterosexual counter parts under the law. 

rbockman
rbockman

the sodomites spread aids in the west, right now they are spreading bacterial meningitis among themselves in New York, 22 sickened, 7 dead so far, won't be long before it affects the general population

BillPranty
BillPranty

With Justice Roberts having a lesbian cousin, and with Justice Roberts showing profound intelligence as a justice, I suspect that the Supreme Court will vote in favor of marriage equality by a vote of 6-3.

OldBob
OldBob

> One factor could be that, as a law professor told the Los Angeles Times, he is a “California establishment Republican” who has traveled “in circles where he has met and likes lots of gay people.”

Just one more reason why so-called conservatives like Kennedy (and what's with that name, huh?), should be barred from the Supreme Court and forced into retirement if already on the court.  I'm sure that TRUE conservatives like Justices Scalia and Thomas not only don't LIKE any "gays", they don't KNOW any either!  A TRUE conservative would live in a conservative suburb, in a conservative house, eating conservative food, drinking conservative drinks, having conservative friends, going to conservative places, and doing conservative things.  TRUE conservatives are incensed that they have to share their ROADS with those of the L-word persuasion!  Maybe all the L-worders could be gathered up and shipped off to wherever they came from.  Who let them in, anyways?!?

jtgasowski
jtgasowski

I am gay and for the record I dont like the use of the term "marriage", it seems that is what most opposition is about. Marraige in itself is an institution that is not surviving.  Hetrosexuals dont even respect it anymore ...they can have the "term."

 What the real fight is about is Equality . Homosexuals are as much a part of the fabric of this country as anyone else. We pay the same prices to live as you do, we serve our counrty, we work our jobs ,we create our society. WE Raise beautiful and tolerent children because we have suffered for freedom. (and if you are not completely ignorant  we have the same sexual prctices that hetros have ..even the most extreme!)  what we want is to know our loved ones are as care for, and protected by the same laws we vote for that straights do, that our resaltionships are as  equaly valid as yours in the eyes of goverment. I dont care that religion will never accept me, I dont rely upon religion to have a relationship with the God of my understanding. But I do rely upon my government for my and my "partner's" protection and legal rights.

daisyandus
daisyandus

If 'marriage' is a religious issue, turn it back over to the church and cut any benefit related to marriage from the federal and state tax codes, etc.  If its a legal issue, then it applies to any two people seeking a permanent partnership. The problem exists when we try to take a legal issue, whether it be marriage or abortion, and turn it into a religious issue.

CTFree
CTFree

"We The People" should never ALLOW the Supreme Court justices to tell US what the laws of the land SHOULD be.  They exist to SERVE US in ENFORCING the laws....not creating them.  It is clear to anyone who is paying attention that the majority of Americans are NOT in favor of gay marriage (even in ULTRA-LIBERAL CALIFORNIA for God's sake ! ) When 12 activist judges impose their own will over the will of the people......the system is broken and dangerous.

jtmidwest314
jtmidwest314

Given Chief Justice Roberts' surprise vote in favor of healthcare reform, it MAY be interesting to see how he votes. He does have adopted children and there are gay couples who chose to adopt children which may be a small influence. In any case, I personally hope it's sweeping reform, not a state issue. Just like Roe v. Wade, which is now forty years old, our country survives controversy quite well. But if you don't have controversy, what would we be doing on the internet !!

KatherineSouthardReece
KatherineSouthardReece

We are NOT supposed to base our laws on what is in the Bible.  We are a nation of people from all religions and none.  Either ALL Americans have the same rights or we might as well just tear up our founding documents.

There is NO PLACE in the Constitution that says, unless you're gay.

Hadrewsky
Hadrewsky

The bible is a book of cobbled together stories Stolen from earlier religions so that it would be easier to indoctrinate new sheep into the flock... and sheep they are.

The Epic of Gilgamesh is older than the bible and if you were to read it you would notice that the so called Holy Bible has ripped off portions of it including a Great Flood and a Savior that was a carpenter... The Zoroastrians gave you even more material the plagiarize into the bible.

What you have is a Bronze Age book of fairy tales that is as Holy as Readers Digest or a roll of Toilet Paper... Nothing More.



Stand back and think about what I just wrote.

benjamin_farr
benjamin_farr

why hasn't TIME placed marriage equality on the cover? 

JAVIERDCH12
JAVIERDCH12

Maybe I am too naive, but I could imagine some of the so-called "conservatives" judges backing gay marriage along with "liberals"...We'll see. I simply think about this issue as a freedom's matter.

antonmarq
antonmarq

Why are out taxes even being wasted on such an anal issue? Bias and prejudiced must be eliminated on all levels. There are just a few fanatics who think the can dictate society's value and the cost of others, and that must stop. 

ShamsAci
ShamsAci

Notwithstanding, 'Gay Marriage' should be taken more as a Social issue than political or else considering as to what extent such an odd issue like 'homosexuality marriage' can be accommodated in the society around and more to consider what would be gay couples' social status. 

 - A.R.Shams's Reflection - Press & Online Publications - Moral Messages Worldwide... 

johneurope
johneurope

This is not a constutional issue, it is a stste issue period. 32 states have passed laws against  same sex marriage. Again it is a state issue period