Some of the appellate courts have upheld bans on gay marriage; other appellate courts have overturned them. As a result, many commentators are saying that SCOTUS (Supreme Court of the United States) will probably hear a case on gay marriage sometime in 2015. Here’s the current situation, as I understand it.
Of the 9 SCOTUS Justices, two have officiated at gay marriages: Ginsburg and Kagan [News source]. There is no doubt how they will vote in any same-sex marriage case that comes before the Court. It doesn’t matter what the particulars of the case are. I doesn’t matter what arguments each side makes. The pro-gay marriage attorney could dance before the Court wearing a silly hat while reciting nursery rhymes in Greek, and his side of the case would still get these two votes.
Kennedy wrote the opinion that struck down the federal Defense of Marriage Act (DOMA). The opinion called a provision of DOMA denying federal benefits to same-sex married couples “a violation of the Fifth Amendment” (the right to due process). [News source]
“They [Proponents of same-sex marriage] expect Justice Anthony Kennedy, the court’s swing vote, to come down on the side of gays and lesbians, just as he did in 1996, 2003 and 2013 in cases involving anti-gay discrimination, sodomy laws and marriage rights.” [News source]
Kennedy did block same-sex marriages from occurring in Idaho, when a lower federal court struck down that State’s ban against same-sex marriage. But this type of decision is no indication of how he will vote. Sometimes the federal judge who himself strikes down a law, also gives an order preventing anyone from acting as if the law were null and void, until a higher court hears the appeal.
So Kennedy will vote for same-sex marriage. That’s 3 votes out of 9.
Breyer is one of the most liberal judges on the Court, consistently and unapologetically liberal. In a 2003 SCOTUS case, Breyer sided with Ginsburg and Kennedy to strike down a Texas law against same-gender sexual acts:
“The Court held that homosexuals had a protected liberty interest to engage in private, sexual activity; that homosexuals’ moral and sexual choices were entitled to constitutional protection; and that moral disapproval did not provide a legitimate justification for Texas’s law criminalizing sodomy.” [Wikipedia]
So that’s 4 votes for gay marriage out of 9.
Scalia and Thomas dissented from the above case; they would have maintained the Texas anti-sodomy laws. They are two of the most conservative Justices on the Court. Along with Alito and Roberts, they each voted in the minority to uphold DOMA (defense of marriage act). The liberal Justices and Kennedy (considered a swing vote) voted to strike down DOMA:
“Justice Kennedy delivered the court’s opinion, and was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito all filed dissenting opinions. Justice Clarence Thomas joined Scalia’s dissent in whole and parts of Alito’s opinion.” [News source]
Sotomayor voted to strike down DOMA. She is considered a liberal Justice. She seems to oppose any type of discrimination based on sexual orientation, and that would include marriage. [Source]
Scalia, Thomas, Alito, and Roberts all voted to uphold DOMA, and they are the conservative Justices on the Court. But Roberts’ swing vote approving of Obamacare makes him a bit of a wild card. He might vote for gay marriage, capitulating to societal and cultural pressures. Supreme Court Justices do not decide cases solely based on the merits of the case. They are influenced by the culture in which they live.
So it looks like any same-sex marriage case before SCOTUS will play out as 5-4 or 6-3. For gay marriage: Kagan, Ginsburg, Breyer, Sotomayor, Kennedy, and possibly Roberts. Against gay marriage: Scalia, Thomas, and Alito.
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