As widely expected—and widely requested in myriad legal filings—the Supreme Court has agreed to review state laws that deny marriage licenses to same‐sex couples, as well as those that deny recognition of such marriages formed in sister states. While the high court ducked these issues in October, at that time there was not yet a “circuit split”: all federal appellate courts to have ruled on the issue had struck down the state laws. When the Cincinnati‐based Sixth Circuit went the other way in November, today’s “decision to decide” was assured.
Moreover, based on the firm briefing schedule that the court has established, it’s clear that the justices intend to hear argument this term—meaning that we can expect a final ruling the last week of June. (This puts paid to my prediction that the Court would grant the case but delay argument till the first week of next term, in October.)
So how will the Court rule? Assuming that Justice Anthony Kennedy is the swing vote—a pretty safe assumption—it’s hard to see him giving full victory to the states. It would be odd indeed if the author of the landmark gay‐rights opinions in Romer v. Evans (1996), Lawrence v. Texas (2003), and United States v. Windsor (2013) suddenly shied from taking the final logical step in that direction. At the same time, it’s at least conceivable that a strong federalist like Kennedy, perhaps joined by Roberts, could find himself in the moderate (and therefore legally controlling) position of striking down the non‐recognition of out‐of‐state marriages while not requiring the issuance of marriage licenses themselves. Maybe. The smart money is still on a 5–4 ruling establishing that this Fourth of July everyone throughout the land will be able to marry without regard to sexual orientation.
While the Supreme Court isn’t a political institution in the conventional sense, the justices don’t live in a vacuum and so are rarely caught too far ahead or behind popular opinion. As Americans’ views on same‐sex marriage have shifted dramatically in the last decade, it quickly became just a matter time before the Court found itself with a case it had to take on an issue that can only be decided one way. This eventual ruling—hopefully on equal‐protection grounds rather than some nebulous results‐oriented hand-waving—will undoubtedly create not insignificant controversy, but the writing has long been on the wall.
