With same-sex marriage arguments scheduled for tomorrow speculation about outcome abounds

With historic arguments scheduled over the constitutionality of same-sex marriage bans in the U.S. Supreme Court tomorrow, news publications across the country are speculating what the end result will be and precisely how it will come about. A New York Times article discusses the legal issues at play and the many ways the Court may reach its decision. There are two central legal issues: Whether states' same-sex marriage bans are constitutional, and whether states must recognize same-sex marriages performed in other states. Each of these issues has time reserved for oral argument. Although there are only two questions, the Times discusses the many ways the Court could reach a decision.

If the justices were to find in favor of those challenging the bans, they could potentially still just find that states must recognize marriages from other states, but not invalidate state bans on same-sex marriage. This would validate all same-sex marriages performed in states where such marriages were permitted by law, but would require same-sex couples to travel to those states to obtain a legal marriage if they lived in a state that did not permit the marriages. If the justices did find that same-sex marriage bans were unconstitutional, this would also provide an answer to the recognition question, but it isn't necessarily clear what rationale they might adopt in invalidating the bans. They could find that same-sex marriage bans violate the equal protection clause of the 14th Amendment by determining that gays are a protected class entitled to heightened scrutiny, or determine that the bans cannot survive rational basis review. They could also couch their decision in the due process clause, finding that marriage is a fundamental right that is being violated by these bans. The Court could also invalidate the bans under both principles, as it did for bans on interracial marriage in Loving v. Virginia.

It is also unclear who will be the deciders in this case. The Washington Post offers a discussion about Justices Kennedy and Scalia and their history with respect to gay rights. Kennedy, who (like Scalia) was a Reagan-appointee, is typically the swing vote in cases such as this, and is the justice who has written the decisions in all of the significant gay rights decisions, including Romer v. Evans in 1996, Lawrence v. Texas in 2003 and U.S. v. Windsor in 2013. Scalia dissented in each of those decisions, and (prophetically) proclaimed in Windsor, “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.” It is widely thought that Kennedy may provide the swing-vote in this case as well, and potentially author the Court's opinion.

CNN offers speculation about how Chief Justice Roberts will fall on this issue. In another ideology-laden case, Roberts offered the swing-vote that upheld significant portions of the Affordable Care Act in 2012. Roberts dissented in U.S. v. Windsor, but found that challengers to a decision that invalidated same-sex marriage bans in California lacked legal standing in Hollingsworth v. Perry. This effectively allowed same-sex marriage to continue in the state.

After oral arguments tomorrow we may have a better sense of how the Court is leaning, and under what legal reasoning, but we will not have a clear answer until the opinion is published, which is likely to happen in June. For more details about the case, including briefs and other filings, see the Obergefell v. Hodges page at SCOTUS Blog.

Photo credit: Jeff Belmonte- via Flickr