By this time tomorrow, we should have at least some idea how the arguments regarding the challenges to bans on same-sex marriage in four states — Michigan, Ohio, Kentucky, and Tennessee — went for both sides of the issue, thanks to the fact that both the transcript of the argument and the audio of the proceedings will be released, according to the Clerk’s office, as early as possible after the arguments themselves have concluded. From that point forward, until what will likely be the last day of the current Supreme Court term when the Court’s opinion in this issue is likely to be issued, legal experts and other observers on all sides will pick over the courts argument, note which Justice asked which questions, and try to fathom which way the Court will rule on what seems likely to become one of the landmark cases of the Roberts Court along with its decisions on the constitutional of the Affordable Care Act and the Defense Of Marriage Act.
As I’ve said before, of course, it’s often dangerous to try to predict how the Court is likely to decide a particular case based upon oral argument, in no small part because Justices often ask questions for reasons that don’t necessarily indicate where they might ultimately land on the issue. That being said, there seems to be a some degree of agreement among those that follow the court closely that the Court is far more likely to issue a ruling striking down state-law bans on same-sex marriage than it is to uphold them. In no small part, this is due to the long series of cases that the Court has issued on the issue of gay rights, all of which seem to be pointing in that direction. It started in 1996 with Roemer v. Evans, in which the Court struck down a Colorado law that purported to invalidate municipal civil rights ordinances protecting gays and lesbians. Seven years later, in Lawrence v. Texas, the Court struck down laws banning sodomy between consenting adults, reversing a decision that a Supreme Court with different membership had issued in 1986. Finally, in 2013 in United States v. Windsor, the Court struck down the Defense of Marriage Act’s ban on Federal recognition of same-sex marriages, and while the decision was largely based on Federalism considerations, it also made arguments regarding equal protection that served as the basis for a long series of lower court decisions over the past two years that have struck down state law bans on same-sex marriage. In each of these three cases the Court, with Justice Kennedy writing the Majority Opinion each time, expanded the scope of Constitutional protection granted to sexual minorities by the 14th Amendment and other provisions of the Constitution to the point where, in the eyes of many observers, striking down state law bans would have to be next logical step unless the Court were to essentially repudiate its previous case law.
Another clue that many observers have looked at in trying to divine how the Justices might rule in the cases it will hear tomorrow is how they have treated the cases that have come before it since the Windsor decision. Federal Courts spent much of the last two years since that case was handed down striking down state laws and constitutional amendments barring same-sex marriage, and they used Justice Kennedy’s reasoning in Windsor as one of the justifications for their holding. Eventually, many of those cases made their way to the Justices, but when instead of taking the appeals of those cases from the Fourth, Seventh, and Tenth Circuit Courts of Appeal, the Justices declined to hear them at all. This meant that the lower court rulings in those cases stood and same-sex marriage essentially became the law of the land in the states covered by those circuits. Then, when the Ninth Circuit followed those other court’s and issued a similar ruling, the Justices declined to stay the effect of that ruling for states such as Idaho and Montana, meaning that marriage became legal their as well. This meant that, over the course of one week in October, the number of states where same-sex marriage was legal grew from 19 to 29. They did the same thing in connection with cases arising in Florida and Alabama. It was only when a Circuit Court of Appeals issued a ruling contrary to the other circuits, that the Justices finally accepted a same-sex marriage case for appeal. As I said at the time, it seems unlikely that the Justices would allow marriages to stand in all of these states if there wasn’t some kind of consensus among a majority of the Justices regarding this issue. Otherwise, they would be consciously creating a situation where thousands of people would be acting in reliance upon their actions beginning last October only to have the rug pulled out from under them later on. While it’s possible that could happen, it seems rather unlikely that the Justices would consciously set up a scenario like that.
Of course, until the decision is handed down in June, we can’t be sure exactly what the Justices intend or what they will do.
Looking forward to tomorrow, Lyle Denniston, who previously summarized the legal positions taken by each side in the cases, has a pretty good summary of what the Court will be dealing with, as does Buzzfeed’s Chris Geidner. The arguments, however, should be largely familiar to anyone who has followed the issue over the past several years. Perhaps the more interesting thing about all of this, though, is the how these arguments represent the culmination of one of the most substantial changes in public opinion in history. It was just some twenty years ago that polls were showing that three-quarters of Americans opposed same-sex marriage and the effort by one state to legalize it led to the passage of the Defense of Marriage Act by an overwhelming and bipartisan margin and a wave of states changing their laws to ban same-sex marriage. Now, we are at the point where the majority of Americans support marriage equality, same-sex marriage is legal in thirty-three out of the fifty states, and the Supreme Court is about to hear argument on a case that could end up being the gay rights movement’s Loving v. Virginia.
Law Professor Michael Dorf recently made this observation about that aspect of this issue:
The recent change in attitudes towards same-sex marriage is remarkable for its speed, but that may simply reflect the well-known “tipping point” phenomenon popularized and arguably oversold by Malcolm Gladwell. Even if some of Gladwell’s examples are controversial, however, the underlying phenomenon undoubtedly exists. For example, ice remains ice as one heats it from sub-zero temperatures to above 32° Fahrenheit, and then it rapidly melts.
Tipping points are especially likely in the political realm because of majoritarianism. A position that lacks support will meet with little success, even as it gains considerable support, but then, when popular opinion crosses the fifty percent threshold, rapid legal change can ensue.
The courts are part of this process. Judges and Justices take account of public opinion both directly in some domains—as when determining whether a punishment is consistent with the “evolving standards of decency” that the Court evaluates in Eighth Amendment cases—and indirectly—as when they decide to duck a question because they regard the answer that the law should give as broadly unacceptable to the public.
Judges and Justices also shape public opinion. Justice Louis Brandeis famously referred to government as an “omnipresent teacher,” and while there is no shortage of criticism of the courts, important judicial decisions can catalyze political action. At the very least, they become part of a wider conversation that includes politicians, activists, journalists, scholars, and others.
Finally and perhaps most obviously, judges and Justices live in the same social world as the rest of us. As more and more LGBT Americans came out, judges and Justices came to understand that these people could be counted among their neighbors, friends, and family members. A judge or Justice who is asked to preside over the same-sex wedding of a former law clerk cannot help finding the experience relevant to how he or she views the constitutionality of a law forbidding such a ceremony.
Contrary to the arguments of the Republicans and conservatives who still hold on to their opposition to same-sex marriage, the Courts are not trampling on public opinion in these cases, they are reflecting it. Over the past twenty years, starting at roughly the same time that the Supreme Court issued its first significant gay rights opinion, public opinion on homosexuality in general and same-sex marriage in particular has changed significantly, and both the political process and the courts have reflected this change. If, as most observers expect, the Justices issue a ruling that strikes down the bans on same-sex marriage in those states where they still exist, they will simply be taking that change to its logical course and, of course, recognizing the rights granted under the Constitution to gay and lesbian couples just as they are granted to the rest of us.
