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News and commentary about the anti-gay lobbyJune 25th, 2015
Chief Justice John Roberts: Yes.
Antonin Scalia: No.
Anthony Kennedy: Yes.
Clarence Thomas: No.
Ruth Bader Ginsberg: Yes.
Stephen Breyer: Yes.
Samuel Alito: No.
Sonia Sotomayor: Yes.
Elena Kagan: Yes.
That’s one of my two predictions for how the Supreme Court will rule on Obergefell v. Hodges, the lead lawsuit for a slew of marriage equality cases before the Court. My second prediction is that the ruling will come down tomorrow. (Note: I’m not so sure about tomorrow as I was earlier this morning. See below.) Here’s my thinking:
6-3: Chief Justice Roberts joins the five-person majority. If the Chief Justice is in the majority, then he has the prerogative to write the ruling or assign it to someone else in the majority. If the Chief Justice is not in the majority, then the task falls to the most senior justice in the majority to either write it himself/herself or assign another justice in the majority to write the opinion.
In my mind, this is critical. Roberts didn’t join the majority in Windsor v. US, so Kennedy ended up writing the opinion declaring that the portion of the Defense of Marriage Act which barred the Federal government from recognizing legal same-sex marriages was unconstitutional. It didn’t address the constitutionality of marriage bans, but look what happened anyway: courts all over the country began using Windsor to strike down those marriage bans right and left. Some of those courts took Windsor to mean that heightened scrutiny applies, or at least was allowed. There is the similar potential, depending on how Obergefell is written, for its effects to reach far beyond the question of marriage itself. It may enshrine, eliminate, or clarify the applicability of heightened scrutiny for LGBT people in other cases, as just one example. Or it may have other follow-on effects, depending on how it’s written. If Roberts has an interest in limiting Obergefell’s effects on other cases, then he may well want to keep the majority opinion out of Kennedy’s hands. Otherwise, the Court goes 5-4 and Kennedy gets to write the opinion — or pass it along to one of the even more liberal Justices.
Now of course Roberts may have other reasons for joining the majority. In today’s Obamacare ruling, he apparently did so in order to write an expansive ruling rather than a narrower one. A narrower ruling, for example, might have left Obamacare intact but the interpretation of the contested phrase “established by the states” up to the IRS. That would allow a future Republican President to order the IRS to interpret the clause differently. But Roberts took that possibility out of the hands of future Presidents by ruling that the intent of Congress when it passed Obamacare was for the subsidies to apply to all states. It’s possible that Roberts may want to take the opportunity to ensure Obergefell is similarly expansive, although I haven’t seen anything to suggest that he would be inclined to do this. But even if he doesn’t, if he sees this marriage equality case as one of the defining rulings of the Roberts Court — as were the two Obamacare cases that he wrote the opinions for — then he may well want to take this opportunity to be a part of that legacy.
So that’s how I get to 6-3.
And I get to 6-3 for both questions: whether gay marriage bans are unconstitutional (yes, 6-3) and whether states must recognize same-sex marriages from other states (yes, the same 6-3, although I guess it might be mooted by the first question). I don’t see a split decision here. If the Court rules against the first question while upholding the second, then it really doesn’t solve anything. In fact, chaos will reign because of the decision. By my count, marriage decisions in about 23 states (I could be off here) and Guam would be rolled back, leaving the status of thousands of marriage licenses in limbo and scores more lawsuits in the making. And that means that the Supreme Court would almost certainly have to address this issue all over again. I just don’t see the Court going against the overwhelming majority of Federal judges while inviting more headaches for itself. Besides, to arrive at this kind of a split decision, they’d more or less have to say that at least a portion of Windsor was “wrongly decided.” I just don’t see them borrowing a phrase like that from Lawrence, which struck down sodomy laws nationwide in 2003, to do something like this.
Friday: Why Friday? Well, Obamacare was today, and since the Court tries to keep each decision day limited to one major decision (and whatever relatively minor decisions which happen to be ready), then there’s no way the marriage case was going to happen today. I actually think that if they were going to strike Obamacare down, they probably would have waited until Monday because of the tremendous fallout. But since it was being upheld, it was a pretty safe move for the court to put it up today. But that necessarily meant that Obergefell would get pushed off.
So why tomorrow and not Monday? Well, the Court doesn’t operate in a hermetically-sealed chamber, unaware of what’s going on around it. June 26 has been a very auspicious day for pro-gay rulings: Lawrence on June 26, 2003, and Windsor on June 26, 2013. Also, Pride is this weekend for a huge number of cities around the world. Considering that the court could have just as easily selected Tuesday, June 30 as an extra decision day, June 26 just seems to be the most likely. That way, everybody gets to talk about it over the weekend and the Court can cleanly dispose of the three or four remaining cases on Monday (depending on how many other cases they release tomorrow) and go home for the summer.
Update: There’s a strong argument against a Friday ruling: the Charleston funerals take place tomorrow. I hadn’t thought of that when I wrote this. I suspect that Friday was chosen as a decision day with Obergefell in mind, but now I’m not so sure it’ll happen.
Grounds?. Equal protection? Due Process? Both? Something else? On that question, I’m on much shakier ground. I don’t really have a prediction here. But you have the rest: 6-3, tomorrow (tentatively). What’s yours?
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Mary in Austin
June 25th, 2015
From your keyboard to the Flying Spaghetti Monster’s noodly appendages! May you be absolutely correct in this!
Rhonda
June 25th, 2015
I agree with the 6-3, but I think Kennedy writes the ruling for due process, and Roberts concurs with the ruling, but on gender bias grounds. BTW, IANAL. :)
Jim Burroway
June 25th, 2015
Also, I ain’t no anykinda lawyer either. (I had to look up IANAL.)
Tony
June 25th, 2015
Your reasoning for 6-3 makes sense, but I have to disagree with it being tomorrow. I’m not saying it won’t be, but I don’t think the court really cares about the significance of the date. They could just as easily release 4 opinions tomorrow, and save SSM for Monday. I would even go as far as saying that being a Friday makes it less likely since that would put a lot of burden on some states to change things over a weekend when they would normally be closed for business.
Jim Burroway
June 25th, 2015
There’s another reason that argues against a Friday ruling: the Charleston funerals. I hadn’t thought of that.
tristram
June 25th, 2015
I thought it would be 6/26 for sure. But I agree that the Charleston funerals should be respected. I can wait until Monday.
tristram
June 25th, 2015
Conversion therapy situation. I apologize for going way off-topic, but this just showed up and I wanted to cross post it here in the hope that someone who otherwise might not have seen it can help this kid –
http://www.outsports.com/2015/6/25/8846099/gay-conversion-therapy-athlete
Marcus
June 25th, 2015
Going off their opinions in Windsor, I predict 5-4. I won’t be shocked if Roberts or Alito concur with the majority on narrow grounds, but I will be if any of the liberals, Scalia, or Thomas flout expectations.
Leo77
June 25th, 2015
Speaking of legal rulings. The SPLC won their fraud case against JONAH (Jewish conversation therapy group) in NJ.
http://www.nj.com/politics/index.ssf/2015/06/gay_conversion_therapy_fraud_trial_verdict.html
Priya Lynn
June 25th, 2015
I don’t think the Charleston funerals will have any bearing on whether or not the decision is released Friday.
Timothy Kincaid
June 25th, 2015
I think that Alito and possibly Thomas will agree with Question Two (interstate recognition). So that will be (I think) 7-2 or even 8-1.
But while it really is a no-brainer, if one reads the clear words of the constitution, Scalia answers to no documents but the writings of the Catholic Church.
Catherine Lugg
June 25th, 2015
I’m betting tomorrow, since, to be blunt, the Chief isn’t exactly sensitive to the concerns of African Americans.
That said, if it’s a 6-3 decision, Roberts will write–and it will be under the contract clause of the constitution–that contract constructed in one state must be recognized in another.
Stay tuned…..
Eric Payne
June 25th, 2015
I still think the Court, 5-4, will rule individual states do not have to offer same-sex couples marriage licenses (Question 1), but, in another 5-4, states must recognize legitimate marriage licenses obtained by same-sex couples in states that do solemnize same-sex marriages (Question 2).
That will make for a de facto right to be treated as a married couple anywhere in the United States, while not actually establishing a pro forms Constitutional right.
Kennedy will be the swing vote in both decisions.
MattNYC
June 25th, 2015
@Timothy
“Scalia answers to no documents but the writings of the Catholic Church.”
EXCEPT for Catholic teachings against the death penalty, taking care of the poor, stewardship of the Earth…
Then, he conveniently prefers to keep his religion out of his politics.
Sir Andrew
June 25th, 2015
I agree with most of your predicted votes, but I think we may be surprised by Thomas. He has been challenging Scalia with one out of every three rulings in the last two months, rather than following blindly whatever Antonin ordered him to do. I think he’s tired of both being pushed around by the Italian bully, and by reading about how he’s being pushed around by the Italian bully; being a lickspittle is not fun…or so I’ve been told. It’s also possible that he will be able to relate our fight for access to our rights with what the African-American community has been through. I think the vote will be 7-2.
It’s clear that Roberts wants to get as far away from a 5-4 ruling as possible considering the importance of this case, as well as the emotions surrounding it. He may find a way to get the last two votes to make it unanimous. He may even have been trading votes all session long just to get to this point. Here’s hoping.
Priya Lynn
June 25th, 2015
” He may find a way to get the last two votes to make it unanimous.”.
If you’re going to dream may as well dream big.
Hyhybt
June 26th, 2015
Not exactly a prediction, but a while back I ranked (based on very little) the possible scores, so to speak, from what I thought most to least likely.
Most: 6-3
(gap)
either 7-2 or 5-4
(bigger gap)
4-5
8-1 or better
3-6 or worse
Rob
June 26th, 2015
I don’t understand why everyone thinks these people think about Pride one way or the other. Obviously, I could be wrong, but I’d guess that they release decisions on the basis of their schedule, not ours.
And as for Roberts joining the majority and writing the opinion to narrow it, if the opinion he wrote were more narrow than the other justices in the majority wanted they would join a broader concurring opinion and that opinion would become the majority. There’s no reason for Roberts to try to “trick” them.
And as for the funerals, the Court is releasing decisions on Friday no matter what. These are separate branches of government. The president giving a eulogy is unlikely to have altered their plans in the slightest.
Marcus
June 26th, 2015
I’ll try for another, shakier prediction: Roberts and Alito will be on the same side, whichever it may be. I think all the justices’ legal decisions will be strongly swayed by their feelings about same-sex marriages, and during oral arguments in this and the 2013 cases, both Roberts and Alito seemed to be opposed, but not disturbed by and contemptuous of the very idea like their fellow conservative Scalia.
@Sir Andrew: It’s true, the decision’s importance in the court of public opinion may be a factor. It’s hard to think of another recent court decision that’s guaranteed the same level of exposure across the globe and in history books.
Eric Payne
June 26th, 2015
When I was wrong, I say I was wrong.
Thank you, Justice Kennedy.
Damn… I feel like crying…
Spunky
June 26th, 2015
Gay marriage equality wins the day, 5-4!!!!!
Who saw that coming? This guy.
Congratulations, America! And congratulations to everyone here at BoxTurtleBulletin. This is our day.
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