Civil and Human Rights

How will Supreme Court rule on marriage?

By Chris Johnson


The nine members of the U.S. Supreme Court are expected to reach a decision by the end of June in two high-profile LGBT rights cases on which they heard oral arguments last week challenging California’s Proposition 8 and the federal Defense of Marriage Act.


The justices could reach any number of decisions on either or both of the cases — upholding the anti-gay measures, dismissing the cases for lack of standing or jurisdiction, striking down Prop 8 and DOMA on grounds they violate the rights of same-sex couples under the U.S. Constitution — or even issuing a national ruling in favor of marriage equality.


Predicting how they might rule is tricky. But several of the justices made statements and asked questions during the oral arguments that offered some hints. Perhaps more significantly, many of them have a record of ruling in gay rights cases that might indicate their leanings on marriage. The Washington Blade has compiled profiles of the justices to assess how they might rule in the two marriage cases before them.


In addition to examining their comments during the arguments, the Blade has looked at how they ruled in other high-profile gay rights cases. One is the 1996 case of Romer v. Evans in which the Supreme Court struck down Colorado’s Amendment 2, which would have prohibited municipalities from passing non-discrimination ordinances protecting LGBT people. Another is the 2003 case of Lawrence v. Texas in which the Supreme Court struck down state sodomy laws.


The Blade also looked at the court ruling in the 2010 case of Christian Legal Society v. Martinez. In that case, the court upheld the Hastings College of Law’s non-discrimination policy against a challenge from Hastings Christian Fellowship, which sought to overturn the policy to maintain its status as an official school group while prohibiting LGBT people from holding positions as officers.


1. Chief Justice John Roberts


The chief justice of the Supreme Court seemed skeptical during oral arguments that Prop 8 and DOMA should be struck down as unconstitutional. He also seemed dismissive of the notion that LGBT people lack political power.


In an exchange with attorney Robbie Kaplan, Chief Justice John Roberts disputed that gay people lack political power — a characteristic that the court has considered in weighing whether a group should be considered a suspect class.


“As far as I can tell, political figures are falling over themselves to endorse your side of the case,” Roberts said.


The chief justice was likely referring to the trend of U.S. senators announcing their support for marriage equality, which just this week added Sens. Bob Casey (D-Pa.), Tom Carper (D-Del.) and Mark Kirk (R-Ill.). When Kaplan pointed out that no group has been subject to referenda in recent years like gay people, Roberts seemed unmoved.


“You just referred to a sea change in people’s understandings and values from 1996, when DOMA was enacted, and I’m just trying to see where that comes from, if not from the political effectiveness of groups on your side,” Roberts said.


Roberts, who was appointed by President George W. Bush, hasn’t ruled on many gay rights cases during his time on the bench. Still, Roberts ruled as part of the dissent that deemed exclusion of LGBT students was acceptable in the Christian Legal Society case.


On the other hand, Roberts in 1996 helped gay rights activists as part of his law firm’s pro bono work in preparation for the Romer case. He also has a lesbian cousin, Jean Podrasky, who attended arguments on Prop 8.


Suzanne Goldberg, a lesbian and co-director of Columbia University’s Center for Gender & Sexuality Law, pointed to another comment Roberts made indicating a parent forcing a child to make friends with another child changes the definition of friendship.


“It suggested that he might be less open to recognizing marriage rights for same-sex couples than the Olson-Boies team had anticipated,” Goldberg said.


2. Associate Justice Antonin Scalia


Associate Justice Antonin Scalia, viewed by many as the most anti-gay of the justices, mused that being raised by gay parents may not be good for a child — an argument made by many anti-gay groups.


“If you redefine marriage to include same-sex couples, you must permit adoption by same-sex couples, and there’s considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not,” Scalia said. “Some states do not permit adoption by same-sex couples for that reason.”


Those words are consistent with anti-gay views that Scalia has expressed in the past. Most notably, speaking at Princeton in December, Scalia compared bans on sodomy to laws against murder, saying, “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”


Since his confirmation to the court, Scalia has not only made anti-gay rulings, but has taken the lead on the opinions. The Reagan-appointed justice wrote the dissenting opinions in the Romer and Lawrence cases and joined with other dissenting justices in ruling for LGBT exclusion in the Christian Legal Society case.


Doug NeJaime, who’s gay and a professor at Loyola Law School, said Scalia is likely to rule to uphold Prop 8 and the Defense of Marriage Act.


“Justice Scalia has made clear in earlier opinions … that legislation can be justified merely by moral disapproval of homosexuality, even though a majority of the court has rejected that position,” NeJaime said. “Moreover, under his theory of constitutional interpretation, he does not believe that lesbians and gay men have a constitutional basis for their claims in these cases.”


3. Associate Justice Anthony Kennedy


The justice who’s being most closely watched because of his reputation for being a swing vote — and his previous rulings in favor of gay rights — conveyed mixed sentiments during the arguments.


Associate Justice Anthony Kennedy contemplated the effect that overturning or sustaining Prop 8 would have on children based on the newness of same-sex marriage.


“We have five years of information to weigh against 2,000 years of history or more,” Kennedy said. “On the other hand, there is … what could be a legal injury, and that’s the voice of these children. There are some 40,000 children in California … that live with same-sex parents, and they want their parents to have full recognition and full status.”


A Reagan appointee, Kennedy authored the majority opinions in the Romer and Lawrence cases that struck down anti-gay measures in those lawsuits. In the Christian Legal Society case, Kennedy also ruled in favor of requiring student groups to be open to all students regardless of LGBT status.


That’s what makes Kennedy’s comment questioning the Ninth Circuit ruling against Prop 8, which was largely based on his opinion in Romer, particularly noteworthy.


“The rationale of the Ninth Circuit was much more narrow,” Kennedy said. “It basically said that California, which has been more generous, more open to protecting same-sex couples than almost any state in the union, just didn’t go far enough, and it’s being penalized for not going far enough. That’s a very odd rationale on which to sustain this opinion.”


Nan Hunter, a lesbian law professor at Georgetown University, said the “single most powerful vibe” she received from Kennedy during arguments was his ambivalence.


“My best guess is that in the Perry case, he will rule in some way that avoids discussion of Prop 8′s constitutionality and that in the Windsor case, he will conclude that DOMA is unconstitutional, but his opinion may invoke federalism as much as it does the Equal Protection Clause,” Hunter said.


4. Associate Justice Clarence Thomas


In accordance with his custom, Associate Justice Clarence Thomas remained silent for the duration of oral arguments in the marriage cases.


Thomas is known for not asking questions. In January, after seven years of silence, the George H.W. Bush-appointed justice made news when he broke his tradition and cracked a joke about the competency of an attorney during a case unrelated to marriage.


But Thomas has a history of taking the anti-gay side. He ruled in the dissent in the Romer and Lawrence cases and ruled for LGBT exclusion in the Christian Legal Society case.


Chris Stoll, a senior staff attorney for the National Center for Lesbian Rights, said oral arguments don’t offer any information on how Thomas might rule, but noted the justice’s history of anti-gay opinions.


“He is quite conservative and historically has voted with the other conservative justices in cases involving LGBT equality,” Stoll said.


5. Associate Justice Ruth Bader Ginsburg


One justice who has a history of ruling in favor of gay rights indicated a disdain for DOMA during oral arguments.


Associate Justice Ruth Bader Ginsburg said the 1996 law creates two different kinds of unions for same-sex and opposite-sex couples: “the full marriage, and then this sort of skim milk marriage.”


While questioning attorney Paul Clement, Ginsburg more distinctly articulated the problems for gay couples under DOMA by enumerating benefits denied to them under the law.


“The problem is if we are totally for the states’ decision that there is a marriage between two people, for the federal government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can’t get leave; people — if that set of attributes, one might well ask, what kind of marriage is this?” Ginsburg said.


Ginsburg also has a history suggesting she’d be willing to rule against Prop 8 and DOMA. The Clinton-appointed justice ruled in favor of LGBT advocates in the Romer, Lawrence and Christian Legal Society cases. Prior to her confirmation as a Supreme Court justice, Ginsburg was a women’s rights advocate and co-founder of the women’s rights project at the American Civil Liberties Union.


David Gans, civil rights director for the progressive Constitutional Accountability Center, said he considers Ginsburg a likely vote to strike down DOMA and Prop 8 based on her history of rulings and comments made in court.


“I think her comments tended to be across the board very skeptical of the justifications offered, and, of course, her record, both as an advocate and justice is to honor the constitutional guarantee of equal protection applies to all persons,” Gans said.


6. Associate Justice Stephen Breyer


The other Clinton appointee on the bench also made comments during the Prop 8 arguments suggesting he might rule in favor of marriage rights for gay couples.


Associate Justice Stephen Breyer was dismissive of Cooper’s assertion that marriage is for procreation, observing California allows straight couples who cannot have children to marry.


“What precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile couples of different sexes to marry would not?” Breyer said. “I mean, there are lots of people who get married who can’t have children.”


And Breyer’s earlier rulings suggest he would be amenable to striking down Prop 8 and DOMA. Breyer joined Kennedy and other justices in the pro-gay rulings for Romer and Lawrence and sided with LGBT inclusion in the Christian Legal Society Case.


Gans said Breyer’s comments during the Prop 8 arguments indicate his rulings on the anti-gay measures will likely be consistent with his earlier decisions.


“Justice Breyer’s questions during oral argument suggested that he would find that discriminatory marriage laws violate the constitutional guarantee of equal protection for all persons,” Gans said.


7. Associate Justice Samuel Alito


Associate Justice Samuel Alito expressed concerns about same-sex marriage, quipping that it’s “newer than cell phones or the Internet.”


“Same-sex marriage is very new,” Alito said. “I think it was first adopted in the Netherlands in 2000. So there isn’t a lot of data about its effect. And it may turn out to be a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe.”


An appointee of President George W. Bush, Alito hasn’t been on the court long enough to have ruled in the earlier landmark Lawrence and Romer cases. But he wrote the dissenting opinion in favor of LGBT exclusion in the Christian Legal Society case.


Lavi Soloway, a gay immigration attorney and co-founder of The DOMA Project, said he expects Alito to be consistent and issue an anti-gay decision in the cases before him — taking note of the exchange in the Prop 8 case.


“This line of thinking was disappointing; it not only belittled the fight for equality, but suggested that Justice Alito would first need to be convinced of the ‘effects’ of same-sex marriage before he could determine whether gay and lesbian Americans have a constitutionally protected right to marry,” Soloway said. “This exchange suggested to me that Alito will most likely vote to uphold Prop 8, preferring that legislatures continue to wrestle with this issue.”


8. Associate Justice Sonia Sotomayor


Another justice — this one appointed by President Obama — asked some of the most pointed questions about whether there’s any reason anti-gay laws could survive the court’s lowest standard of review.


Associate Justice Sonia Sotomayor pressed attorney Charles Cooper on whether he could conceive of anti-gay laws on other issues other than marriage that could survive rational basis review. The answer from Cooper was that he could not.


“If that is true, then why aren’t they a class?” Sotomayor responded. “If they’re a class that makes any other discrimination improper, irrational, then why aren’t we treating them as a class for this one thing?”


Sotomayor’s response suggests she might agree with the Obama administration that laws related to sexual orientation should be subjected to heightened scrutiny, or a greater assumption they’re unconstitutional.


A newcomer to the court, Sotomayor hasn’t had the opportunity to rule on many of the earlier LGBT rights cases that have come before the bench. But in the Christian Legal Society case, she joined four other justices in ruling student groups had to accept all students regardless of LGBT status.


Notably, Sotomayor was the only one among nine justices who responded to a letter from a North Carolina 6th grader named Cameron urging justices to rule in favor of marriage equality. The justice said she had no comment on the marriage cases, but urged Cameron to keep “dreaming big.”


NCLR’s Stoll pointed to Sotomayor’s exchange with Cooper as evidence she’d rule against Prop 8 and had similar expectations for how she’d rule on DOMA.


“She seemed perplexed and unpersuaded by Cooper’s argument that excluding gay people from marriage somehow promotes ‘responsible procreation’ by different-sex couples,” Stoll said.


9. Associate Justice Elena Kagan


Yet another justice appointed by President Obama seemed skeptical about arguments presented by proponents of Prop 8 and DOMA.


Associate Justice Elena Kagan suggested to attorney Paul Clement that Congress may have had another motive other than uniformity when it determined to pass the anti-gay law.


“This was a real difference in the uniformity that the federal government was pursuing,” Kagan said. “And it suggests that maybe something — maybe Congress had something different in mind than uniformity.”


Clement offered a lengthy response in which he talked about federal bans on polygamy and laws after the Civil War allowing freed slaves to marry. But Kagan responded by reading from the House report on DOMA, which states the law was passed “to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality” — deemed a “gotcha” moment that elicited laughter from those in the courtroom.


During the Prop 8 arguments, Kagan was also skeptical of Cooper’s argument that the purpose of marriage is procreation and asked for a legitimate reason for excluding same-sex couples from marriage.


“Is there any reason that you have for excluding them?” Kagan said. “In other words, you’re saying, well, if we allow same-sex couples to marry, it doesn’t serve the state’s interest. But do you go further and say that it harms any state interest?”


Like Sotomayor, Kagan is a relative newcomer to the court and hasn’t had the opportunity to rule on gay cases. During her confirmation hearing, Kagan wouldn’t say whether the she thinks the U.S. Constitution guarantees same-sex couples the right to marry.


Still, Loyola’s NeJaime said Kagan seemed bothered during oral arguments by equal protections concerns presented by Prop 8 and DOMA.


“Given her lengthy questions about the relationship between age and procreative ability, she seems unconvinced by the ‘responsible procreation’ rationale for same-sex marriage bans,” NeJaime said. “And given her reading of the House report on DOMA regarding the ‘moral disapproval of homosexuality,’ she is suggesting that the law may not survive rational basis review.”

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