The preliminaries in Obergefell vs. Hodges were interesting to watch. I’m predicting 6-3 in favor of the constitutionality of gay marriage: 4 guaranteed and 2 swing.
We need reminding, especially with a hot-button issue like gay marriage, that the role of the Supreme Court is not to legislate nor to block questionable legislation. It is simply to determine what laws are constitutional. Here is what the justices — eight of them; one remained silent — say.
Update (6/26/15): The result was 5-4. My predictions below were correct except for Roberts who did not swing. See here for analysis.
THE DISSENT (3)
Antonin Scalia. Everyone hates this guy, and not without warrant, but he does get some things right, and — though I hate to say it — he’s the sharpest mind on the court. If not for his swing-vote with the liberals in Texas vs. Johnson (1989), we wouldn’t today have the right to burn the American flag. He may be an arch-conservative, but he cares keenly about civil liberties. In this case, he clearly wants to preserve the right of religious pastors to conduct marriage according to their creed. Thus, he says, the question of gay marriage should be the state’s decision. Allowing states to decide the issue would allow them to make exceptions — for example, that gays can be married, but ministers who don’t believe in gay marriage cannot be required to marry them. If, on the other hand, the supreme court rules that gay marriage is a constitutional right, ministers won’t be able to opt out.
On the face of it, his argument is reasonable, but Attorney Mary Bonauto and Justice Elena Kagan shot it down. Under the First Amendment, according to Bonauto, a clergyperson cannot be forced to officiate at a marriage that he or she does not want to officiate at. Kagan likewise pointed out there are many rabbis who refuse to conduct marriages between Jews and non-Jews — even though we have a constitutional prohibition against religious discrimination — and those rabbis get all the powers and privileges of the state. Scalia’s objection really doesn’t hold.
Samuel Alito. I have a grudging respect for Scalia but certainly not Alito (his lone dissent and contempt for the First Amendment in Snyder vs. Phelps (2011), disqualifies him from serving on the court in my opinion). His objections carry less force than Scalia’s. He asks that if two people of the same sex can marry, then why not four people of opposite sexes? The institution of marriage in America takes two partners for granted. More than two raises issues that state marriage laws don’t address and aren’t equipped to handle. Put simply, polygamy isn’t an analogy here.
Alito also claimed that denying same-sex marriage doesn’t necessarily imply homophobia. There have been cultures, he says, which were very tolerant of gay sex, but which also didn’t allow gay marriage, like ancient Greece and medieval Japan. That’s obviously true, but a rather laughably stupid observation, in view of the fact that gay sex in such warrior-cultures tended to reinforce roles of power and subordination. Alito, as usual, is the tool of the supreme court.
Clarence Thomas. He was the only justice who had nothing to say, but then he’s a nothing judge who should never have been appointed. (He was chosen by the first Bush only because he was black, to replace the retiring black Thurgood Marshall.) It’s a guarantee he will vote against gay marriage, for little or no good reason. With Scalia, he filed the blistering dissent months ago, against the other justices’ rejection of Alabama’s plea to say no to gay marriage in the state until the supreme court issues its own decision.
THE SWING (2)
John Roberts. I have considerable respect for our chief justice. His swing-vote with the liberals in National Federation of Independent Business vs. Sebelius (2012) declared Obamacare constitutional, which I believe cut strongly against Roberts’ personal feelings for the health insurance mandate. Indeed, at first he was considering that Obamacare was unconstitutional under the commerce clause, but then ultimately recognized that it was a constitutional exercise of Congress’ taxing power. (And make no mistake, Obamacare is certainly a tax: it’s an amendment to the Internal Revenue Code; it’s calculated based on a percentage of adjusted gross income or a fixed amount, whichever is larger; it raises revenue; it serves the general welfare, and is not a criminal penalty in disguise.)
Roberts may go “against himself” again. As with Obamacare, he doesn’t seem wild about the idea of gay marriage. He voiced strong concerns about changing how the institution of marriage has been recognized for a long time, as well as the impact of shutting down state-level debate with a supreme-court ruling. On the other hand, he seems to entertain doing exactly that, if the question can be resolved by simple reference to sexual discrimination (rather than sexual orientation). “If Sue can marry Joe,” he asks, “but Tom can’t marry Joe, isn’t that sexually discriminating against Tom?”
Anthony Kennedy. On the one hand, this is the guy who wrote the decision for Lawrence vs. Texas (2003), which recognized a fundamental right to have sex with a partner of one’s choice. On the other hand, Kennedy is like the chief justice — worried about changing a definition of marriage that has been the same for “millennia.” I suspect he’ll emerge in favor of gay marriage, given his consistent concern about preserving the dignity of the relationships between gay couples and families.
IN FAVOR (4)
Ruth Ginsburg. Ginsburg got in the best zinger when she responded to the idea that marriage is for procreation: “Then why do we allow old people to get married?” Score.
More significant was her response to the concerns of other justices (Alito especially, but also Roberts and Breyer) that allowing gays to marry would transform the definition of marriage. Ginsburg says the definition of marriage has already been transformed — after the women’s movement led to the eradication of laws that treated wives as the property of their husbands. Marriage has become increasingly inclusive, and so gays deserve the same equal treatment that women and other previously disadvantaged groups now receive. A reasonable argument.
Sonya Sotomayor. Sotomayor takes the opposite approach of Ginsburg, focusing on marriage more as a static fundamental right, rather than an evolving one. For if marriage is fundamental, she says, it must be extended to all citizens on equal terms: “The right to marriage is embedded in our constitutional law. It’s a fundamental right. You can’t narrow it down and say, ‘Is gay marriage fundamental?’ or ‘Is black-and-white marriage fundamental?’, etc. That, for me, is as simple as the question gets.”
Elena Kagan. It’s a given that she will vote for gay marriage (she has presided over gay weddings), and like Ginsburg she refuted idiotic objections. To the claim that banning gay marriage encourages responsible pro-creation among straight people, she asks whether we should, by implication, ban marriage between straight people who don’t want to have children.
Stephen Breyer.I don’t believe for a moment that Breyer will vote against gay marriage. His initial bluster over the supreme court being forced to decide an issue that should be left in the hands of the states was mere token posturing. I suppose one of the liberal justices had to make a feeble show of resistance, and this was it.
His next observation obviously showed his true colors, and echoed Sotomayor: “Marriage is about as basic a right as there is; that the Constitution and Amendment 14 does say you cannot deprive a person of liberty, certainly of basic liberty, without due process of law. To take a group of people where so little distinguishes them from the people you gave the liberty to, and to deny them participation in this basic institution — that violates the 14th Amendment.”
More than likely. From a constitutional perspective, it’s hard to deny gay couples the same legal benefits enjoyed by straights. Bringing up procreation is meaningless (unless we’re seriously going to entertain denying marriage to old people and straights who don’t want to, or can’t have, kids).
On the dissenting side, Scalia is correct that religious pastors should not have to marry gay people if that conflicts with the pastor’s beliefs. Realistically, I don’t see that being a problem.
It hinges on Roberts and/or Kennedy, and they will probably swing. Roberts is like the retired David Souter — capable of rendering decisions against his interests in favor of constitutional elements — and Kennedy has consistently called for extending to gay people constitutional dignities.