Where Will SCOTUS Fall on Gay Marriage?

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RYAN AQUILINA holds a sign as pro and anti-gay marriage demonstrators rally outside the U.S. Supreme Court on the morning that oral arguments on the question of same sex marriage are heard.
A pro-gay marriage demonstrator outside the U.S. Supreme Court.Photo: Brian Cahn/Zuma Press/Corbis

In BuzzFeed legal correspondent Chris Geidner’s analysis, today’s Supreme Court arguments indicated “a 5-4 vote in favor of same-sex couples’ marriage rights appears to be the most likely outcome, although Chief Justice John Roberts’ vote shouldn’t be counted out.” And of course all eyes were on that perpetual decision-swinger, Justice Anthony Kennedy:

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[While Kennedy] did not make any unambiguous statement about the end result of the case, he harshly questioned the state of Michigan’s argument that it should be allowed to exclude same-sex couples from marriage. At one point, Kennedy commented to Michigan’s lawyer that its law banning same-sex couples from marrying “assumes” that those couples can’t have the same “more noble purpose” as opposite sex couples have for entering marriage.

Although questions were asked, including by Kennedy, about the length of the understanding of marriage as only an institution between one man and one woman, Kennedy also noted that “about the same time” passed between the Supreme Court’s decision ending “separate-but-equal” with regards to racial discrimination and its landmark decision ending interracial marriage as has passed between the Supreme Court’s decision ending sodomy laws and today’s arguments.

However, Kennedy also commented on how the (opposite-sex) definition of marriage “has been with us for millennia” and that “it’s very difficult for the court to say, ‘Oh, we know better.’” But aligning with Geidner’s take, SCOTUSblog’s Kevin Russell reads another tea leaf from Kennedy’s behavior:

Kennedy’s relative silence in the second argument may be good evidence that he intends to rule in favor of the couples on the main question — that is, it suggests he will vote to require states to allow same-sex marriages in their own states, which will effectively moot the question of whether they are required to recognize the same-sex marriages performed in other states.

For more on Kennedy and his road to this case, check out this profile in yesterday’s L.A. Times. Looking at other predictions, 538’s Oliver Roeder passes along projections from both an algorithm and the “leading Supreme Court Fantasy League“:

The usual swing vote in marquee ideological cases, Justice Anthony Kennedy, is viewed as having a roughly 75 percent chance of voting to reverse the lower courts, which would be very good news for same-sex marriage proponents. The liberal bloc — Justices Breyer, Ginsburg, Kagan and Sotomayor — are seen as even more likely to vote to reverse. And some of the predictions even see Chief Justice Roberts as a realistic reversal vote, especially on the recognition question.

If all the justices vote the way they are most likely to, the algorithm foresees a 7-2 reversal on both questions. The [FantasySCOTUS] crowd foresees 5-4 and 6-3 reversals on the marriage and recognition questions, respectively. Either set of outcomes would be a triumph for same-sex marriage proponents.

Over at The Atlantic, Molly Ball summarizes how shifting public opinion has so many same-sex-marriage supporters feeling confident:

Almost every state that has legalized gay marriage has seen it peacefully and uneventfully implemented. Even deeply culturally conservative states like Utah and West Virginia have now been allowing gay couples to marry for months, with little drama. There haven’t been mass protests in the streets; in fact, every state that has legalized gay marriage has seen a subsequent uptick in public support for it. … According to last week’sWashington Post/ABC News nationwide poll, gay marriage is supported by 64 percent of people in states where it is legal, and 54 percent in states where it is not. Even many who don’t support gay marriage seem to have accepted it: Nearly three-quarters of Americans consider the legalization of gay marriage inevitable.

If the court does rule against marriage equality, what effect would that have on states whose same-sex marriage bans have been overturned? The Washington Post’s Sandhya Somashekhar looks into that:

It would be a mess,” said Dale Carpenter, a professor of constitutional law at the University of Minnesota, noting that marriage confers 1,100 rights and benefits at the federal level and hundreds more from the states, from filing taxes jointly to inheriting hunting licenses. “There would be great uncertainty in the aftermath of such a ruling. All kinds of possibilities we can’t even think of would arise.”

The effect would be explosive in the 21 states where same-sex-marriage bans were struck down by federal courts. Groups for and against these unions say such a decision would set off a cascade of fresh litigation and spark dramatic new fights in state capitals, with each side jockeying to have its version of marriage enshrined in state law. Some legal experts say the old laws in those states would snap back into place, immediately shutting the door on future marriages, while others contend that would require another round of litigation. Some believe the thousands of marriages that have taken place in those states would be deemed valid, though others think the matter would need to be settled by the courts — perhaps even the Supreme Court.

And it’s unclear what would happen to same-sex couples who have already gotten married:

James Esseks, an attorney for the American Civil Liberties Union, pointed to several recent cases involving same-sex marriage that suggest courts generally think that “once you’re married, you’re married.” But some experts think it could take years of litigation, and perhaps another go before the Supreme Court, to clarify that.

Finally, looking at the politics of what SCOTUS decides, the Upshot’s Nate Cohn argues that a ruling in favor of marriage equality could actually benefit the GOP by giving them cover to retreat from an increasingly unpopular position:

Without a ruling, it is hard to imagine the Republicans abandoning their opposition to same-sex marriage anytime soon. Polls show that two thirds of Republicans continue to oppose same-sex marriage, in no small part because white evangelical Christians, who oppose same-sex marriage by a three-to-one margin make up around 40 percent of Republicans. The young Republicans voters who are relatively supportive of same-sex marriage — if still divided — are less likely to turn out in primary elections than their older and more culturally conservative counterparts.

But over the medium term, a Supreme Court ruling would probably resolve the debate over same-sex marriage and push it to the sidelines. There are big reasons Republicans would benefit. As many as 60 percent of adults support same-sex marriage, and the margin is even larger among young voters.

The consequences could be even greater down the line, in four or eight years, or beyond. If Republicans don’t make a big effort to make gains among nonwhite voters, or if they do but fail, they’ll need to broaden their appeal among white voters. That might require them to do better among relatively secular voters than they have in the past.