New Supreme Court Session: Same-Sex Marriage Will Probably Be on the Agenda

By Daniel Borgen, PQ Monthly

On a personal note: I’ve been carrying around this secret sense of gloom on the same-sex marriage front–I’m convinced that when the Supremes inevitably take up the issue this session, they’ll manage to erase all our recent gains in one fell swoop. (Especially after they upheld–albeit narrowly–Obamacare, all I can think about is the fact that–states’ rights or no–there’s no way in hell we’re getting two significant, progressive rulings out of this group.) Reading this story today–about a lesbian widow’s legal fight to get her late wife’s inheritance–sort of underscores this quiet, ongoing sense of dread. Like a nagging lover, it just won’t stop.

But in perusing the internets this morning, I happened upon a bit of hope–in the form of The Advocate‘s piece on the many ways the Supremes might go–from the slew of DOMA challenges waiting in the wings or, perhaps, the Prop 8 challenge itself. (Let’s hope it’s the former, not the latter.) Because the article is long–and a little dense–I thought I’d lift a couple of passages that might give you a little hope, too.

First, this: “This term, the Supreme Court might very well bring us one step closer to that promised land. SCOTUS will almost certainly hear a challenge to 1996 Defense of Marriage Act — and if it does, most observers believe it will declare DOMA’s section 3 unconstitutional. That’s the part that says that, for federal purposes, the definition of marriage is a union between one man and one woman, no matter what your home state says. As I write this, several DOMA challenges are on appeal to our top court; and the justices will soon be considering which ones to accept — but we don’t yet know how they’ll decide.” 

Later on in the piece: So what should we expect in the DOMA cases? Everyone I interviewed believes that the Supreme Court will probably — note the probably — strike down DOMA section 3. The four liberal justices are all expected to strike it down. Almost everyone believes that John Roberts, Antonin Scalia, Samuel Alito, and Clarence Thomas will uphold. That makes Justice Kennedy the swing vote, as usual. He wrote powerful opinions on our side in Romer v. Evans and Lawrence v. Texas; he’s libertarian on individual rights; and he doesn’t like the feds encroaching on state power (consider his vote to strike down Obama’s Affordable Care Act). For that reason, most people predict he’ll vote against DOMA.

As Denniston writes, “Kennedy, I believe, does not want the court to do anything that he would deem to be undermining his opinion in Lawrence (in which he authored the opinion striking down Texas’s sodomy laws). A ruling to uphold DOMA, I believe, would look to him as a repudiation of not only Lawrence but also his states’ rights/federalism jurisprudence.” And although justices won’t acknowledge it, they do take the cultural temperature on hot-button issues. Kennedy will have noticed that an ever-increasing majority of Americans favor our freedom to marry. Even better, this fall advocates expect that citizens in two or three states (Maine, Maryland, Washington) will pass marriage equality laws at the ballot box. That breakthrough will get enormous play and will make it easier for Kennedy to go our way.

Don’t spit out your coffee, but some folks think we’ll get Chief Justice Roberts on our side too. After all, the man clearly loves to strike down federal statutes, and he doesn’t have the same culture-war passion as Scalia and Alito. What’s more, he might conclude that such an important social issue shouldn’t be decided narrowly. Since everyone knows which way the culture is heading, Roberts might decide he doesn’t want to be on the discreditable Plessy v. Ferguson side — the infamous 19th-century Supreme Court decision upholding legal segregation — and will vote to strike DOMA so that both he and the court will look good in the history books.

You can read the entire piece here–and as has become customary when it comes to same-sex marriage, almost all optimism is tempered with a dose of reality–and, of course, the fact that no one can predict with certainty how the justices will rule. But there’s almost just enough in here to chase off that nagging dread that’s been following me around–at least for a few days.