Gay Rights in the U.S. -- The Supreme Court

My last two posts on gay rights have covered marriage bans (including California's Proposition 8), and the Defense of Marriage Act. Both issues, I noted, have cases currently pending at the U.S. Supreme Court, waiting until the court is back in session for word as to which cases (if any) will be heard.

Scotusblog is an excellent online resource for anyone who wants to follow the Supreme Court. An especially good article was published there in August illustrating just how hyper-partisan the Court has become, and pointing out just how important the appointment of even a single new judge could be to future rulings. If I still have your interest and haven't bored you to tears with all my legal talk in these recent posts, then I assume you would find this original article fascinating, and I'd encourage you to go read it.

But for my discussion here, the big takeaway from that article would be this. There are currently four "very conservative" justices on the Supreme Court: Scalia, Thomas, Roberts, and Alito. There are currently four "moderately liberal" justices: Ginsburg, Breyer, Sotomayor, and Kagan. That leaves one "moderately conservative judge" in what passes for the middle of the current court: Anthony Kennedy. In most of the 5-4 decisions since Sandra Day O'Connor retired, he has been the "swing vote."

When legal experts try to guess what would happen in a gay rights case brought before the Supreme Court, it's a given that Scalia, Thomas, and Alito will vote against. It's a given that Ginsburg, Breyer, Sotomayor, and Kagan will vote in favor. Chief Justice Roberts made a bit of a wild card of himself when he recently voted to uphold the Affordable Care Act, but is nevertheless a very likely vote against with his three very conservative peers.

So ultimately, when you ask questions like "do gays have a fundamental right to marry in the U.S.?" or "is the Defense of Marriage Act unconstitutional?", it may be that only one person's opinion actually matters: Anthony Kennedy. Historically, Kennedy's conservatism has tended toward libertarian. More importantly to the matter at hand, he has voted twice in favor of gay rights in two major prior cases.

First was a case decided in 1996, known as Romer v. Evans. It was born right here in my home state of Colorado, when Focus on the Family and other organizations persuaded voters to approve a measure making it illegal to pass state laws protecting gays from discrimination. When this went before the Supreme Court, the law was struck down as unconstitutional, because it served no demonstratable purpose other than to legislate animus. Justice Kennedy wrote the majority opinion paper for the 6-3 ruling. (Ginsburg and Breyer, on the court then as now, were with the 6; Scalia and Thomas, on the court then as now, were with the 3.)

Then came Lawrence v. Texas. This case from Texas originated when police, responding to a phony call, discovered two men engaging in consensual sex. Texas was among the states to still have an anti-sodomy law on its books, and so the men were prosecuted criminally for their private, consensual behavior. This went to the Supreme Court in 2003. Yes, 2003. As in: less than a decade ago, it was still illegal in many states to engage in certain kinds of consensual sex in the privacy of your own home. But another 6-3 ruling was delivered here, striking down all sodomy laws in the U.S. as unconstitutional. The majority opinion was again written by Justice Kennedy. (And again, Ginsburg and Breyer supported, while Scalia and Thomas dissented.)

So looking at these two cases, it is reasonable to think that Kennedy could side in support of gay rights. But the question is, where is the line that he would not be willing to cross?

Most legal experts seem to think it's a sure thing that Kennedy would vote to strike down DOMA as unconstitutional. Not only are the intrusions on people's rights and the anti-gay animus similar to the two gay rights cases he's already sided in favor of, but there's a "federalism" issue in play too, with the federal law impeding the rights of the states to enact marriage as they see fit. If the experts are right, then by June of 2013, true and complete marriage equality will be brought to the six states that have passed it locally, along with any states that enact it in the coming election.

But those same experts are not as bold in their predictions in the lawsuit regarding California's Prop 8. Where the DOMA cases are about extending full marriage equality to the states that already have chosen to have it, the Prop 8 case was challenged on the grounds that it's unconstitutional to deny gay people the right to marry, period (the conclusion that was reached by the first judge to hear the case).

The trouble is, the judicial branch in general tries to be measured in the use of its power. And ever since the Supreme Court decided the landmark case of Roe v Wade, it has been in general particularly cautious. Some have opined that a part of the reason that abortion has remained such a hot button issue for these nearly 40 years is that the court pushed a ruling too far in advance of society's general level of acceptance of the issue. They offer as contrast the (too perfectly named) case of Loving v Virginia, which in 1967 unanimously struck down laws prohibiting interracial marriage. At the time of that ruling, such laws -- which had once been in every single state -- had already been repealed in over two-thirds of them. The Supreme Court ruling was largely affirming public opinion, sweeping away the last vestiges of anti-miscegenation in the few states still clinging to it.

If there's any truth to any of that analysis, then regardless of the right or wrong of the Prop 8 case, same-sex marriage hasn't reached that point. The polls have just now in 2012 reached the point where a majority of Americans support it. 31 states have banned it in their constitutions, while none have stood against attempts to ban it. No state has voted to enact it. (Though, as I've written, this could happen this November; the stakes thus may be even higher.)

Anthony Kennedy is one of the older justices on the Supreme Court. Some imagine that he might be looking to make his mark one last time before retiring, by delivering gays their own Loving v Virginia ruling. But the more reasonable speculation is that he is too conservative a man to strike down state constitutional bans in more than half the country and throw open the floodgates on same-sex marriage.

Which puts the Prop 8 trial in an interesting place. When the Ninth Circuit Court of Appeals reviewed the ruling that declared gays have a fundamental right to marriage, they seemed to be aware of this likely caution by the Supreme Court, and fashioned a much narrower ruling. Setting aside that original, bold declaration, their ruling simply stated that it was unconstitutional for the right to marriage, having already been granted to gay Californians, to be taken away again without legitimate reason. In short, they refashioned the ruling to apply to the particular case of California only.

And now the prevailing wisdom among experts is that the Supreme Court may simply refuse this fall to hear the Prop 8 case at all. If they do, same-sex marriage will immediately be re-legalized in California. That's a solid victory that will immediately double the portion of the U.S. population that lives in a state that recognizes marriage equality. But the fight will have to go on in the other 40-or-so states.

Frankly, it's hard to know what to hope for in the Prop 8 case. The stakes are high if the Supreme Court does decide to hear it. They could simply affirm the "California only" ruling. Or we could get the grand prize, a recognition of a fundamental right to marry that would instantly affect the whole county. Or we could get the nightmare outcome, where the Supreme Court holds that bans on same-sex marriage are lawful, establishing a legal precedent that could bind progress for a generation.

But then again, is it best to wait? Aside from the obvious injustice of continuing to allow discrimination against American citizens, there's the possibility that the makeup of the Supreme Court could become even less friendly to the cause the next time a case finds its way there. And this goes back to that Scotusblog article I mentioned at the beginning of this post. This whole mental exercise has revolved around what one man, Anthony Kennedy, will do. What if he retires? (At age 76, I'd have done it a long time ago!) What if he dies? (None of my grandparents lived to be the age he's already reached.) Put in his place a Supreme Court justice appointed by either Barack Obama or Mitt Romney, and you get two very different pictures of gay rights in the United States for the foreseeable future.

In any case, the next year is going to be a real nail biter for those who support marriage equality. What will the voters do in November? What cases will the Supreme Court elect to hear in September or October? How will the actual hearing go?

And next summer, what will the rulings be?