After granting a writ of certiorari in four same-sex marriage cases in which federal courts of appeals upheld state same-sex marriage bans, the U.S. Supreme Court is poised to squarely confront, for the first time, the following two questions:
The first of these questions was before the Court in 2013, but the Court declined to answer it, holding that it could not do so because it was barred by a lack of standing on the part of the California gay marriage ban's proponents. To make a long story short, the law was being defended by a coalition of organizations that had supported the Proposition 8 ballot initiative after the California government declined to defend the law; the Court held that they had no right to bring an appeal. This decision was widely described as a "punt" or a "dodge" by the press at the time, but I disagreed and still do. The doctrine of standing (or, put simply, who has the right to bring a case in federal court) is a threshold matter in every single case and can't be ignored just because we really, really want to see a substantive question decided.
This time around, there is no question of standing because the states themselves are defending their same-sex marriage bans, and therefore probably no option for the Court other than to decide whether the Constitution requires states to grant marriage licenses to same-sex couples. It was pretty clear as early as November 6, 2014, when Sixth Circuit Court of Appeals became the first federal appeals court to uphold a gay marriage ban, that this would happen. Prior to November 6, all federal courts of appeal that had considered same-sex marriage bans had struck them down, and the Supreme Court declined to grant certiorari in any of those cases. The Sixth Circuit decision, however, created a "circuit split" that the Supreme Court could not avoid having to resolve.
So, given the near-certainty that the Supreme Court will resolve the constitutionality of same-sex marriage bans, how are they likely to do so? Predicting the Court's decisions can be tricky, but here, most factors seem to weigh in favor of an expectation that the Supreme Court will hold that same-sex couples have a constitutional right to marry.
First of all, the legal case for same-sex marriage is extremely straightforward. The 14th Amendment to the Constitution states, among other things, that a state may not "deny to any person within its jurisdiction the equal protection of the laws." It's inarguable, of course, that same-sex couples are being treated differently than opposite-sex couples under same-sex marriage bans, but that's not enough to resolve the case on its own, since nearly all laws single out particular classes of people for differential treatment. Under current Fourteenth Amendment case law, laws and regulations may be subject to different levels of scrutiny depending on the classes they target. Lower courts have not been able to agree which of these levels of scrutiny applies to laws targeting gay people, and a big part of the Court's job will likely be to answer that question.
The baseline of Fourteenth Amendment scrutiny is "rational basis review," which requires only that a law bear a rational relation to a legitimate government purpose. It's typically applied to laws that don't burden any groups of people who have historically faced legal discrimination. By now, you'll probably see the problem with applying rational basis review to a law that targets gay people, but nevertheless, lower federal courts have employed this standard in coming down on both sides of the issue. For the Court to hold that same-sex marriage bans are constitutional, it will almost certainly have to hold that rational basis review applies, but some lower courts have held that same-sex marriage bans are so clearly motivated by animus toward gay people as to fail even the rational basis test. The actual history of campaigns for same-sex marriage bans in this country provides a whole lot of support for that view.
On the other end of the spectrum is "strict scrutiny," under which a state must show that its law is "narrowly tailored" to a "compelling government interest." This is an extremely demanding standard, usually applied to laws targeting "discrete and insular minorities" or restricting speech, and usually fatal to the laws it's applied to. The opponents of the same-sex marriage bans will of course hope to establish that this standard of review applies, and if they succeed on that point, they'll almost certainly win their case.
In addition to the argument based on the Fourteenth Amendment's Equal Protection Clause, there's a second one based on the same amendment's Due Process Clause, which states that a state may not "deprive any person of life, liberty, or property, without due process of law." Without going into too much of the history, this clause is generally understood to protect most of the rights included in the Bill of Rights, as well as certain other unenumerated rights "implicit in the concept of ordered liberty," from interference by the states. In Loving v. Virginia (1967), a case regarding Virginia's ban on interracial marriage, the Court held that the right to marry was one of these rights. It's difficult for me to imagine a convincing basis on which this right could be withheld from same-sex couples but not interracial couples.
So, what we've got here doesn't seem to be a terrible difficult question of law, and the way the Supreme Court treated these cases up until November 6 can be read as suggesting that the Court thought lower courts were resolving it correctly in favor of same-sex couples. Not only did they decline to hear any same-sex marriage cases before the circuit split; they also declined to issue stays that would have prevented lower-court rulings from going into effect. In practice, the Supreme Court's inaction means that gay couples have been getting married across the country in the numerous states where gay marriage bans were held to be unconstitutional. Former U.S. Solicitor General Ted Olson, who argued the Prop. 8 case before the Supreme Court, thinks this is reason enough to believe the Supreme Court intends to hold same-sex marriage bans unconstitutional, to wit:
Of course, all this discussion is predicated on the idea that the Supreme Court is made up of legal scholars applying the law, through the lens of their own particular legal philosophies, and not just political appointees acting in the service of an ideology. In my experience, that's more true than it isn't, but this post is probably still incomplete without looking at the actual voting makeup of the Court.
The simplest way to describe the makeup of the Court is thus: Five conservative justices, and four liberals, with Reagan appointee Anthony Kennedy as the median justice. Given the strength of the same-sex couples' legal argument, it's probably fair to assume that liberal justices Kagan, Breyer, Ginsberg, and Sotomayor are reliable votes to strike down the bans. Conservative justices Scalia and Thomas have said enough in the past on both the subject of gay rights and some of the particular legal theories involved in this case to make it clear they'll vote to uphold the bans; Alito's almost as certain to be on this side of the vote. Kennedy, while generally conservative, has been a key vote in a handful of past Supreme Court victories for gay rights advocates; on the other hand, he's hinted in the past that he believes states have the right to define marriage on their own terms. Kennedy is the most likely fifth vote for striking down the bans, but Chief Justice John Roberts, who was surprisingly cagey on the subject of state bans in U.S. v. Windsor (2013), might be an alternative possibility. I wouldn't be shocked to see a 6-3 decision to strike down the bans.
One more thing about Kennedy that's probably worth noting: At the age of 78, and probably feeling no strong compulsion to stay on the court to maintain any sort of ideological balance, he's likely nearing the end of his career. He's got to know that that his vote in this case, especially if it's decisive, is likely to determine the way history sees him. If you're inclined to believe the justices consider such things, then I think you have to believe that could tip the scales.
It's not impossible that I'm getting this all wrong. Supreme Court prediction, most of the time, is just reading tea leaves. However, in view of all the above, it's very difficult to imagine this case ending any other way than in fully equal access to marriage for same-sex couples nationwide.
But that's all just my opinion, after all. I wonder what a real constitutional originalist would think.
Quote:
1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
The first of these questions was before the Court in 2013, but the Court declined to answer it, holding that it could not do so because it was barred by a lack of standing on the part of the California gay marriage ban's proponents. To make a long story short, the law was being defended by a coalition of organizations that had supported the Proposition 8 ballot initiative after the California government declined to defend the law; the Court held that they had no right to bring an appeal. This decision was widely described as a "punt" or a "dodge" by the press at the time, but I disagreed and still do. The doctrine of standing (or, put simply, who has the right to bring a case in federal court) is a threshold matter in every single case and can't be ignored just because we really, really want to see a substantive question decided.
This time around, there is no question of standing because the states themselves are defending their same-sex marriage bans, and therefore probably no option for the Court other than to decide whether the Constitution requires states to grant marriage licenses to same-sex couples. It was pretty clear as early as November 6, 2014, when Sixth Circuit Court of Appeals became the first federal appeals court to uphold a gay marriage ban, that this would happen. Prior to November 6, all federal courts of appeal that had considered same-sex marriage bans had struck them down, and the Supreme Court declined to grant certiorari in any of those cases. The Sixth Circuit decision, however, created a "circuit split" that the Supreme Court could not avoid having to resolve.
So, given the near-certainty that the Supreme Court will resolve the constitutionality of same-sex marriage bans, how are they likely to do so? Predicting the Court's decisions can be tricky, but here, most factors seem to weigh in favor of an expectation that the Supreme Court will hold that same-sex couples have a constitutional right to marry.
First of all, the legal case for same-sex marriage is extremely straightforward. The 14th Amendment to the Constitution states, among other things, that a state may not "deny to any person within its jurisdiction the equal protection of the laws." It's inarguable, of course, that same-sex couples are being treated differently than opposite-sex couples under same-sex marriage bans, but that's not enough to resolve the case on its own, since nearly all laws single out particular classes of people for differential treatment. Under current Fourteenth Amendment case law, laws and regulations may be subject to different levels of scrutiny depending on the classes they target. Lower courts have not been able to agree which of these levels of scrutiny applies to laws targeting gay people, and a big part of the Court's job will likely be to answer that question.
The baseline of Fourteenth Amendment scrutiny is "rational basis review," which requires only that a law bear a rational relation to a legitimate government purpose. It's typically applied to laws that don't burden any groups of people who have historically faced legal discrimination. By now, you'll probably see the problem with applying rational basis review to a law that targets gay people, but nevertheless, lower federal courts have employed this standard in coming down on both sides of the issue. For the Court to hold that same-sex marriage bans are constitutional, it will almost certainly have to hold that rational basis review applies, but some lower courts have held that same-sex marriage bans are so clearly motivated by animus toward gay people as to fail even the rational basis test. The actual history of campaigns for same-sex marriage bans in this country provides a whole lot of support for that view.
On the other end of the spectrum is "strict scrutiny," under which a state must show that its law is "narrowly tailored" to a "compelling government interest." This is an extremely demanding standard, usually applied to laws targeting "discrete and insular minorities" or restricting speech, and usually fatal to the laws it's applied to. The opponents of the same-sex marriage bans will of course hope to establish that this standard of review applies, and if they succeed on that point, they'll almost certainly win their case.
In addition to the argument based on the Fourteenth Amendment's Equal Protection Clause, there's a second one based on the same amendment's Due Process Clause, which states that a state may not "deprive any person of life, liberty, or property, without due process of law." Without going into too much of the history, this clause is generally understood to protect most of the rights included in the Bill of Rights, as well as certain other unenumerated rights "implicit in the concept of ordered liberty," from interference by the states. In Loving v. Virginia (1967), a case regarding Virginia's ban on interracial marriage, the Court held that the right to marry was one of these rights. It's difficult for me to imagine a convincing basis on which this right could be withheld from same-sex couples but not interracial couples.
So, what we've got here doesn't seem to be a terrible difficult question of law, and the way the Supreme Court treated these cases up until November 6 can be read as suggesting that the Court thought lower courts were resolving it correctly in favor of same-sex couples. Not only did they decline to hear any same-sex marriage cases before the circuit split; they also declined to issue stays that would have prevented lower-court rulings from going into effect. In practice, the Supreme Court's inaction means that gay couples have been getting married across the country in the numerous states where gay marriage bans were held to be unconstitutional. Former U.S. Solicitor General Ted Olson, who argued the Prop. 8 case before the Supreme Court, thinks this is reason enough to believe the Supreme Court intends to hold same-sex marriage bans unconstitutional, to wit:
Quote:
I do not believe that the United States Supreme Court could rule that all of those laws prohibiting marriage are suddenly constitutional after all these individuals have gotten married and their rights have changed. ... To have that snatched away, it seems to me, would be inhuman; it would be cruel; and it would be inconsistent with what the Supreme Court has said about these issues in the cases that it has rendered.
Of course, all this discussion is predicated on the idea that the Supreme Court is made up of legal scholars applying the law, through the lens of their own particular legal philosophies, and not just political appointees acting in the service of an ideology. In my experience, that's more true than it isn't, but this post is probably still incomplete without looking at the actual voting makeup of the Court.
The simplest way to describe the makeup of the Court is thus: Five conservative justices, and four liberals, with Reagan appointee Anthony Kennedy as the median justice. Given the strength of the same-sex couples' legal argument, it's probably fair to assume that liberal justices Kagan, Breyer, Ginsberg, and Sotomayor are reliable votes to strike down the bans. Conservative justices Scalia and Thomas have said enough in the past on both the subject of gay rights and some of the particular legal theories involved in this case to make it clear they'll vote to uphold the bans; Alito's almost as certain to be on this side of the vote. Kennedy, while generally conservative, has been a key vote in a handful of past Supreme Court victories for gay rights advocates; on the other hand, he's hinted in the past that he believes states have the right to define marriage on their own terms. Kennedy is the most likely fifth vote for striking down the bans, but Chief Justice John Roberts, who was surprisingly cagey on the subject of state bans in U.S. v. Windsor (2013), might be an alternative possibility. I wouldn't be shocked to see a 6-3 decision to strike down the bans.
One more thing about Kennedy that's probably worth noting: At the age of 78, and probably feeling no strong compulsion to stay on the court to maintain any sort of ideological balance, he's likely nearing the end of his career. He's got to know that that his vote in this case, especially if it's decisive, is likely to determine the way history sees him. If you're inclined to believe the justices consider such things, then I think you have to believe that could tip the scales.
It's not impossible that I'm getting this all wrong. Supreme Court prediction, most of the time, is just reading tea leaves. However, in view of all the above, it's very difficult to imagine this case ending any other way than in fully equal access to marriage for same-sex couples nationwide.
But that's all just my opinion, after all. I wonder what a real constitutional originalist would think.
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