The Supreme Court will hear oral arguments in Obergefell v. Hodges today, holding debate on whether state-level bans on same-sex marriage are constitutional and, perhaps by extension, if marriage is a fundamental right that cannot be denied on the basis of sexual orientation. It’s an historic day, and could be an indication of more historic days to come.
The case comes shortly (in legal terms) following the United States v. Windsor decision, in which the Court held that the Defense of Marriage Act was unconstitutional, and that the federal government had to recognize same-sex marriages that were legal on a state level.
Here are a few of the important things to listen for as the LGBT community and nation as a whole attempts to read the tea-leaves as to how the justices plan to rule later this summer:
What are the conservatives arguing?
Over 100 amicus briefs have been filed by various parties in advance of these oral arguments, many of which entail a wide range of conservative cases against marriage equality. Some are absurd, like the one filed by “over 100 scholars of marriage” — a title in search of a job — arguing that legalizing same-sex marriage will directly result in over 900,000 abortions over the next generation. Others argue that the court should reject marriage equality because sodomy was illegal for so long that tradition mandates upholding bans on same-sex marriage. Still more argue that endorsing marriage equality will stigmatize religious conservatives, effectively telling the Court to preemptively exercise heightened scrutiny for them as a protected class, not the LGBT community.
In oral arguments in lower courts, and in Windsor, conservatives have also argued against marriage equality on the grounds that the state has an interest in defining marriage on the grounds of procreation, and that children of same-sex couples fare worse than children of opposite-sex couples. It would be a gross understatement to say that those arguments did not fare well under scrutiny.
If the conservatives arguing against marriage equality in court adopt any of these arguments, it will signal that they’re going for a big, unlikely win. If, on the other hand, they make a smaller case, arguing that the Court should resist public opinion and punt the issue back to the states, it will amount to an admission that marriage equality should be legal, just in as few places as possible.
Making their case in terms of federalism and states’ rights is likely conservatives’ last best hope for walking out of Obergefell with anything to hang their hats on. It would be a major concession, but a calculated one. As oral arguments commence, we’ll know early on if that’s the tack they are taking.
Will the plaintiffs cite Scalia?
In his 2013 dissent in Windsor, Justice Antonin Scalia (R – VA) penned an impassioned outburst denouncing the victory of the “so-called homosexual agenda,” warning the nation that the ruling set a dangerous precedent for future cases:
The real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “‘bare … desire to harm’” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.
To which those in favor of marriage equality responded: “Yep, pretty much.”
Scalia’s Windsor dissent has been used in numerous cases in which lower courts have invalidated state bans on same-sex marriage. As Garrett Epps of The Atlantic noted, it was even directly referenced in roughly half of the majority decisions that struck down same-sex marriage bans.
The concession embedded in Scalia’s rant is crucial in determining not if the court affirms marriage equality, but in how broad their ruling is. So it would constitute more than simple trolling if the plaintiffs were to remind the Court of it.
If the Court rules in favor of marriage equality on the same grounds as Scalia cited in Windsor — that same-sex marriage bans are motivated by a “bare…desire to harm” — then the ruling will have used heightened scrutiny and classified sexual orientation as a protected class of citizens. That would be huge in the context of future laws and court cases concerning LGBT discrimination, which we may well see in the near future. As many of the recent religious freedom “right to discriminate” laws were passed in part as a response to state-level marriage equality, it’s highly likely that marriage-related discrimination winds up back in court in the coming years.
Another way the Court could use heightened scrutiny in deciding Obergefell would be to rule that same-sex marriage bans discriminate based on sex, not sexual orientation. As Kenji Yoshino at Slate noted, “James Obergefell was prohibited from marrying his now-deceased partner, John Arthur, because of their sexes, not their orientations. If John had been a woman, they could have married, regardless of their sexual orientations.” However, this form of heightened scrutiny would not constitute the same kind of victory for the LGBT community, as it could not be used as precedent in cases concerning anti-discrimination efforts that really are about sexual orientation as opposed to sex. However, as Yoshino also points out in their article, heightened scrutiny concerning sex and sexual orientation is “not mutually exclusive.”
The Court is widely expected to rule in favor of marriage equality, but how they rule is almost as important. And in what is probably the only time I will ever use these words in this order: The Court should use Scalia’s logic as precedent in deciding this case.
What is John Roberts thinking?
Anthony Kennedy is considered the Roberts Court’s swing justice, but his opinions in Windsor have led many to believe that he will come down in favor of marriage equality, and could do so using heightened scrutiny. This being the case, almost as much attention is being paid to John Roberts, who court observers are having a harder time reading.
The Bush appointee is regarded as being both personally opposed to marriage equality and professionally concerned about his legacy as Chief Justice. One need look no further than his opinion(s) in the NFIB v. Sebelius case that partially upheld the Affordable Care Act to see this tension at play. In Obergefell, Roberts could go through another tug of war in which he both wants to be on the right side of history and has personal objections to what being on the right side of history entails.
That said, when it comes to Obergefell, the LGBT community may not even want Roberts’s vote. As Michaelangelo Signorile noted earlier this year in the Huffington Post, it is entirely possible that Roberts will vote with a majority in favor of marriage equality for the purpose of writing a narrow opinion. By voting with the majority Roberts, being Chief Justice, could reserve the right to write the controlling opinion. Unlike a majority opinion written by any of the other pro-marriage equality justices, Roberts’s opinion could potentially be much narrower, avoiding heightened scrutiny.
In other words, Roberts could elbow his way into a majority opinion that could, in theory, approach marriage equality in terms of federalism, in which states have to recognize out-of-state same-sex marriages but can’t be required to perform them within their own borders. This is essentially what conservatives such as Marco Rubio — and Tony Perkins — have been arguing ever since they stopped shaking their fists at Windsor.
Today’s an historic day, and will give us clues as to what an even more historic day this summer will look like. All signs point to some form of victory for the LGBT movement, but the deal isn’t done yet.