What to watch for at the Supreme Court today

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.

Stay tuned.

Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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13 Responses to “What to watch for at the Supreme Court today”

  1. Rick B says:

    One of the issues is whether states can refuse to recognize same sex marriage from outside the state. Well, states already recognize marriages performed in foreign countries. My kid was married in Thailand and the State of Texas recognized it with proper documentation. Why should a specific group be carved out (LGBT individuals) and their out-of-state marriages not recognized? That is pure irrational discrimination.

  2. dcinsider says:

    You need to remember no one writes a majority opinion that is not joined by the majority. Even if the Chief assigns himself to write, he has to convince four others to join him. Kennedy may, but the libs won’t f they don’t like it.

    If the Chief and Kennedy go one way, and the four libs another, you end up with plurality opinions that achieve the goal of marriage equality bit for very different (and non-precedential) reasons. That’s a 2-4-3 split.

  3. FLL says:

    From Dubbya to Jebbya. That does sound like the End Times. If so, Lindsay Graham must be the Scarlet Woman that the apostle John and Aleister Crowley were always going on about. I guess that’s a rather unfortunate visual image, no?

  4. 2karmanot says:

    Jebbya and Walker, now that’s an End Times scenario : http://adgitadiaries.com/2015/04/27/the-end/

  5. BeccaM says:

    Yeah, but that would set up an equal protection case easily, in that any gay or lesbian couple could demonstrate — in clear financial terms — how they’re disadvantaged by having to travel out-of-state in order to obtain a civil marriage license.

    This would particularly impact the very poor and the very sick.

  6. FLL says:

    A new description of fundie Christians making a fuss over nothing: sturm und drang! Good laugh line.

  7. Butch1 says:

    Watch out for the typical homophobic justices on the right side of the bench who will do their usual obstructive nonsensical noise making, asking ridiculous questions to drag the Right to Marry questions off point and into the ditch. They will use little petty hypotheticals that have nothing to do with reality and all to do with just running out the clock since they have already made up their minds long ago how they are going to rule on this issue.

  8. emjayay says:

    And I think this will go into most of their decision making. But they have split the baby before. Like I said, the reactionary Jesus states would probably eventually fold after more years of sturm und drang.

  9. Don Chandler says:

    There are no good reasons to delay marriage equality nationwide. The adherents of anti-gay arguments present the worst and most most convoluted and unsupportable arguments imaginable. And the slipperiest slope of all is the one Scalia is standing on. Because if they give credence to hate and discrimination, it will just encourage it nationwide…and that is the real slippery slope argument: Never give credence to the irrational.

  10. FLL says:

    “states have to recognize out-of-state same-sex marriages but can’t be required to perform them within their own borders.”

    That would make a patchwork mess out of the United States and turn the entire issue into a joke—a very unfunny joke—with couples simply crossing state lines to get married in order to receive not only federal benefits but state benefits in the less enlightened state where they live. I would hope the justices can see what a farce that would be. The Court would become a laughing stock, complete with Comedy Central parodies. I really don’t think this is the look that the Court is going for.

  11. emjayay says:

    All the levels of scrutiny aside, it would seem like the worst outcome would be “states have to recognize out-of-state same-sex marriages but can’t be required to perform them within their own borders.” It’s hard to see anything worse given the history of gay related issues in the Supreme Court.
    It seems to me that this outcome would first make marriage equality effectively universal, although requiring out of state destination weddings for some (Miss Manners and I strongly disapprove, but sometimes you gotta do what you gotta do). And then eventually make actual marriage equality universal as even the most retarded states give in as public opinion changes and they figure out their resistance isn’t making much of any difference anyway.
    In the past, eventually after maybe a hundred years the Supreme Court has figured out that Constitutional principles are in fact universal and not something to be decided on by rednecks in some former Confederate state. Leaving marriage equality or not to states doesn’t seem supportable.
    Of course I’m old enough to know the ideologues

  12. Indigo says:

    Roberts is very precise but he’s not an attention-hog. He likes where he is, he does his job dutifully, he studies is 17th century theoreticians carefully, and goes home, presumably to put on his hair shirt and say his evening rosary. I expect him to vote with the majority because understands the difference between secular American Constitutional law and the Roman Catholic Canon of Church Law. He’s not stupid.

  13. FLL says:

    It would be logical for Kennedy to write the opinion since he wrote the opinion in Windsor, and I would rather that he did write the opinion in this case. Roberts will most likely vote with the majority, but I hope he doesn’t try to hog the limelight for this historic case by writing the opinion himself, which is his prerogative as chief justice. I only say that because I think Kennedy would be more likely to finally enshrine intermediate scrutiny as the standard of review in a case involving anti-gay bias. The pessimistic angle is that Kennedy may not even need to use any type of heightened scrutiny to rule in favor of marriage equality since the Court could easily rule that way using rational basis alone. That would leave the application of heightened scrutiny to some future court—all the more reason to keep Jebbie Bush out of the White House. Duh.

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