Final prediction on same-sex marriage cases, post oral arguments

March 28, 2013

Supreme Court LGBTAfter yesterday’s oral arguments in U.S. v. Windsor, I was hoping for some clarity in how the Court is going to rule.

In some ways, I have a better understanding of the position of the Court, but in others, I’m even less certain than I used to be.

At the outset, I’m going to reiterate that Windsor and Hollingsworth v. Perry are going to be jointly decided.  I’ll get into the reasons for this belief shortly.

First, as has been widely reported in the media, it seems very likely that Section 3 of the federal Defense of Marriage Act (DOMA), which restricts the federal government to recognizing only heterosexual marriages, will be struck down.

Unfortunately, the Court’s reasons for this aren’t entirely clear at this point.  After reviewing the oral arguments, I noticed two possible theories on which the Court could base this finding.

The first, which seems to have gained the most traction, is that DOMA’s Section 3 unconstitutionally infringes on states’ rights to regulate marriage.

The short version of the theory is that states have always had the exclusive power to grant marriage licenses, and the federal government has always deferred to the states in deciding when a couple was actually “married.”

If the Court were to take this route, it would find that Section 3 interferes with that state power, and that it must be invalidated.

The benefits of this line of reasoning for the Court is that there wouldn’t have to be an Equal Protection determination made – that is, the Court wouldn’t have to decide whether Section 3 discriminates against individuals on the basis of their sexual orientation, and therefore there would be no need to decide what level of judicial scrutiny to which such laws are to be subjected (e.g. rational basis, intermediate scrutiny, or strict scrutiny).

I’m calling this approach “the Punt,” since it allows the Court to decide a case on one of today’s most volatile social issues without actually making a decision on one of today’s most volatile social issues.

The other theory is on Equal Protection – that Section 3 must be struck down because it treats one class of individuals (LGBT individuals) differently than others.

Although the four liberals are easily onboard with this one, it clearly makes the conservative justices uncomfortable (some more than others).

The reason for this is because of the major implications that could result from the Supreme Court’s holding that refusing to recognize same-sex marriage violates the Equal Protection Clause – even if only at the federal level.

I’ve discussed this point in much greater detail in this post, but, at the very minimum, such a holding would significantly weaken the constitutional integrity of DOMA’s Section 2 – which allows states to refuse to recognize the same-sex marriages of other states – even if the Court explicitly distinguishes Section 2 from Section 3 on Equal Protection grounds.

The broadest impact of such a holding would be the invalidation of same-sex marriage bans in states across the country.

Judging by comments heard on both Tuesday and Wednesday, this is a consequence with which the four liberals are quite content but one that makes many of the conservative justices uncomfortable.

Obviously, the liberal justices also know this to be the case, and no single statement yesterday revealed this point more than a question asked by Justice Sotomayor.

In responding to the Solicitor General’s argument that DOMA raises an Equal Protection violation for both the federal government and the states, Justice Sotomayor asked, “Is there any argument you can make to limit this [Equal Protection argument] to this case, vis-à-vis the Federal Government and not the States?”

Obviously, given Justice Sotomayor’s other comments and questions throughout both days of oral arguments, she is not of the belief that bans on same-sex marriage would be Equal Protection violations for only the federal government, but not the states.

She was asking this question, then, to entice one or two of the conservative justices over to their camp – specifically, Justice Kennedy.

Tuesday’s arguments over Prop 8 revealed that Kennedy was not comfortable with the Court “making the decision” for the states on same-sex marriage.

Yesterday, he saw Section 2 as “helping” the states to maintain their own definitions of marriage and not have those of other states forced onto them, whereas he saw Section 3 as interfering with the states’ police powers.

This view aligns with the first possible theory – “the Punt.”

Recognizing this, Sotomayor’s question, then, was an attempt to get Kennedy to reconsider, which, given his comments on Tuesday about his concern about the “40,000 children in California…that live with same-sex parents,” may suggest that he is open to considering the human side of the equation – that tens or hundreds of thousands of families nationwide are adversely affected by prohibitions on same-sex marriage.

At this point, I think that how Justice Kennedy will come down will depend largely on which side does a more effective job of lobbying him.

Despite the fact that I don’t think Justice Kennedy has even made up his mind yet, I’m still going to make a prediction, and I’m going to go in the same direction that I did for last year’s Affordable Care Act challenge: Justice Kennedy and/or Chief Justice Roberts will, after considering the issue more, recognize the historic implications of the decision, and choose the Equal Protection route.

I don’t believe it is as likely that the Court will choose the Equal Protection rationale for Perry, but it’s still possible.  Nevertheless, I’ll err on the conservative side with my prediction and say that the Court will most likely find that the Prop 8 challengers lack standing.

My final prediction on Windsor’s standing questions is 9-0 affirm.

My final prediction on Windsor’s merits issue is 5-4 affirm (majority: Kennedy, Breyer, Ginsburg, Sotomayor, and Kagan; dissent: Chief Justice Roberts, Scalia, Thomas, and Alito) (striking down Section 3).

My final prediction on Perry’s standing question is 6-3 reverse (majority: Kennedy, Chief Justice Roberts, Breyer, Ginsburg, Sotomayor, and Kagan; dissent: Scalia, Thomas, and Alito).

I may as well throw in my prediction on Perry’s merits question, in case it does get that far: Affirm 5-4 (majority: Kennedy, Breyer, Ginsburg, Sotomayor, and Kagan; dissent: Chief Justice Roberts, Scalia, Thomas, and Alito) (striking down Prop 8).