Today (Friday, December 7th, 2012) the Supreme Court announced that they’re going to be hearing two cases this March.
One is a challenge to constitutionality of the Defense of Marriage Act, and the other is a challenge to California’s Proposition 8 ban on gay marriage.
For those of you who aren’t savvy when it comes to LGBT rights legislation or just need a quick refresher, the Defense of Marriage Act (or DOMA) is the federal act, passed in 1996, that defined marriage as the legal union between one man and one woman for all federal purposes (including insurance benefits for government employees, immigration, or filing joint tax-returns), while Proposition 8 is a 2008 state constitutional amendment that banned gay marriage in California.
These cases mark the Supreme Court’s first entry into the gay marriage debate, and while the SCOTUS currently stands (or rather, sits) at a count of 5 conservatives to 4 liberals, it’s my prediction that the ruling will actually stand 6-3, invalidating both DOMA and Proposition 8.
The justification for this prediction is comes down to looking at the the past records of one conservative justice (Anthony Kennedy) and the motivations of another (Chief Justice Roberts)
Despite often being clumped in with the conservatives, Anthony Kennedy in many ways has been the flag bearer of LGBT rights in the last 16 years.
In fact, Kennedy wrote the opinions for the most significant pro-gay rights cases in history, Romer v. Evans (1996), where the court held that a Colorado constitutional amendment preventing gays from attaining protected status under the law was constitutional, and Lawrence v. Texas (2003) where the court held that states could not ban consensual homosexual sex as illegal sodomy.
Roberts, on the other hand, is going to be dipping his feet into his first major LGBT rights case as a supreme court justice. While Roberts is also usually clumped in with the conservatives, it’s usually justified. However, Roberts I think is forward looking enough to realize that these cases are both going to be incredibly historical cases, the LGBT equivalents to Brown v. Board of Education, and with the Healthcare ruling last year, I think Roberts has shown that he cares more about his legacy as Chief Justice than he does being a party line voter.
So here is the prediction: It’s going to be a 6-3 vote on each case (or at least a 5-4 vote, if Roberts yields to his faction), invalidating DOMA and Proposition 8
Kennedy will write the opinion(s) as LGBT rights cases have largely become his legacy, and he will continue to use the rationale he used in Romer v. Evans, where he states that discrimination against homosexuals is not rationally related to a legitimate state interest. (Which is, not coincidentally, the language that the lower courts have used in their opinions invalidating the two pieces of legislation)
Scalia will write the dissent(s) (which Alito and Thomas will join) where he’ll say that there’s nothing in the Constitution about equal protection of marriage and will say that if the LGBT community wants constitutionally protected marriage, then they should pass an amendment changing the constitution rather than interpreting the constitution outside of its intended bounds (this is the same originalism argument that he used in Lawrence v. Texas, the very case I talked about earlier that Kennedy wrote the majority opinion for)
It’s hard to see the court’s decision to hear these cases as anything but a great thing for LGBT rights advocates everywhere. Even with the court composition as it is, it’s hard to imagine a situation in which the court upholds either of the two laws being presented, especially with Kennedy on the court. LGBT rights is his legacy, and the cases coming before them have been sent up the lower courts who have consistently found the challenged legislation illegal, using the exact same language Kennedy has been using for over a decade.
I imagine there will be a lot of happy couples in California and across the United States come this June (when the opinions will be released)