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

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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.

230 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.

PaulETooleySr
PaulETooleySr

@paulsrtooleythesatan Whoever put that nomenclature on my name is the Satanist, not me. I believe in God , the father, God, the Son, and God, the Holy Spirit. I despise the death and degradation caused by satan.

KevinSmith
KevinSmith

@PaulETooleySr  The misuse of sexual purpose? I don't think so, evolution is absolute in rejecting what does not work and same sex sexual purpose exists only because evolution created it and it has for some reason furthered  the species OR IT WOULD CEASE TO EXIST. You should try looking at the world based on fact , not fantasy.

tom.litton
tom.litton

@PaulETooleySr While i don't agree with that argument, i understand it.


What i don't understand is how that argument translates to making them second class citizens.  Let God punish them if he sees fit.  There is no justification for you to punish them further.  Not by God's laws, or mankind's.

PaulETooleySr
PaulETooleySr

@RoedyGreen You know not the principle(s) of which you speak. Unfortunately for you.

I do agree that religion is foremost in the concepts of those on either side of this issue. It has to be, since there is a correct view and an incorrect view of all issues involved in every person's experience.

See my comments above that begin with: Religion is based on principles for living.... This is true for you for me and everyone living.

Let me know if you'd like a copy of The Great Controversy Between Good and Evil by E.G.White. It's online if you care to Google it. I can see you have an intelligence that needs to get another viewpoint...The one for the good side of life. My email is: paulsr.tooley@verizon.net

tom.litton
tom.litton

@RoedyGreen I have a theory.  Religion is always the excuse and never the reason.  That is people (with some exceptions) decide what they want to believe and then use religion to justify it.

PaulETooleySr
PaulETooleySr

@KevinSmith @PaulETooleySr Evolution is a false concept, proven over and over again. Evolution is not a creator, it is a theory, and is a false theory. Kevin, sorry you are so illiterate, You've been hoodwinked by a bunch of whangdoodles.

RossHayward
RossHayward

@PaulETooleySr @RoedyGreen That is rather condescending Paul.  How do you know what Roedy knows or doesn't know? Honestly?


There is a separation of church and state. Thomas Jefferson was very afraid of this country becoming a theocracy. There is a freedom of religion in this country.  Native Americans practiced same-sex marriage long before Europeans invaded - if you don't believe me, Google "Two Spirit People".  Constitutionally, we have no right to make a law to prevent Native Americans to have same-sex marriage - or anyone else for that matter. 

PaulETooleySr
PaulETooleySr

@RossHayward @PaulETooleySr @RoedyGreen What you don't understand is that thousands of persons need to know truth, and as an agent of the Creator God we are, as individuals, responsible to know the truth and spread it to persons so they can meet at the pearly gates.

RossHayward
RossHayward

@PaulETooleySr @RossHayward @tom.litton @RoedyGreen 

I have read it... in Hebrew even.  I understand it fully. I am educated enough to stand toe to toe with a rabbi or pastor and there has been nothing said today that even comes close to changing my mind. Most Christians don't understand the culture that Christianity came out of, so they don't even understand what they are reading.... and again, the English translations are flawed.

tom.litton
tom.litton

@PaulETooleySr @RossHayward @RoedyGreen 

There is a difference.  He is using the constitution to justify his opinion.  You are using religious doctrine (a high disputed one at that). 

Since the the supreme court must use the constitution, not religion to justify their decisions, they should find in favor of equality.  

 It is consistent with the constitution (freedom of religion, and not discriminating against people based on religion) and Gods laws (you shall not judge, yeast you be judged).  

You have already agreed it is consistent with the second argument, and have no argument against the first. 

RossHayward
RossHayward

@PaulETooleySr @tom.litton @RossHayward @RoedyGreen but right and wrong as defined by YOU... 

Do you realize that the prohibition against homosexuality in Leviticus only speaks of men having sex with men?  There is NO prohibition against lesbians. Your definition of right and wrong is your flawed understanding of biblical texts.

PaulETooleySr
PaulETooleySr

@RossHayward @PaulETooleySr @RoedyGreen 

Ross you're doing in your response exactly what you're suggesting I was doing. Ultimately God will judge . His wrath will be awful. Those of us who use and defend correct principles will, hopefully; be agents of God to alert them to concepts that may save them from that wrath which is poured out and eventuates in the destruction of souls that could have avoided it, had they known right from wrong.

tom.litton
tom.litton

@PaulETooleySr @RossHayward @RoedyGreen laws are essential. they define what we, as memebers of a society, can and can't do to each other.  

For example, your now allowed to discriminate against others based on their religious beliefs.

RossHayward
RossHayward

@PaulETooleySr @RossHayward @RoedyGreen  

Your trying to be Socratic in the way you are arguing... Socrates was gay.  If you think that gay people are so evil, don't use our techniques. Your argument is disingenuous and you know it.

The Native American's didn't suffer because they allowed gay marriage.  They were fine with it for thousands of years.  They suffered because Europeans came over here to run from religious persecution and a chance to make a new life.  They disregarded the native people's rights... The Native American's suffered because of lack of good weaponry.


Sure, Rome fell, but it wasn't because they allowed gay people in their society - they over extended themselves... and how did the Greeks suffer from the result of gay people?

I never suggested abolishing all of the law, only making the laws fair.  We don't live in a theocracy.  If you don't believe in same-sex marriage, don't marry a guy. If you believe that homosexual is going to hell because they are "living in sin", then let them and we'll all find out at the pearly gates.... Let God decide in the after life.  It's not the government's job to make laws to stop people from sinning according to one person's interpretation of the bible...

PaulETooleySr
PaulETooleySr

@RossHayward @PaulETooleySr @RoedyGreen  Ross, do you think laws are essential? Should we do away with all laws? If so; why? If not; why not? Should laws, if we have them, be applicable to all involved? Where did laws originate? For what purpose?

These are some of the querys we need to consider an answer to.

Thomas Jefferson didn't set a good example as someone to look to as being admirable when it came to his own lifestyle. That is one reason he didn't want the principles of God to prevail. And; yes, those countries that permitted same sex marriages all suffered for so doing. There can be no freedom without constraint of good laws. We have, as nations and countries, every right to make laws.

Without laws there would only be chaos.