Robert E. Rains, Pennsylvania State University and Dara E. Purvis, Pennsylvania State University

On April 28, the Supreme Court heard arguments in Obergefell v Hodges, challenges arising in four states (Ohio, Tennessee, Kentucky, and Michigan) to anti-same-sex marriage laws.

The Court asked the parties to address two specific questions: 1) Does the Fourteenth Amendment require a state to license a marriage of two people of the same sex? and 2) Does the Fourteenth Amendment require a state to recognize a marriage of two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

The federal circuit courts of appeal are currently split on these issues. All circuit courts that have addressed them since the Supreme Court’s Defense of Marriage Act (DOMA) decision in US vs Windsor (2013), except the Sixth Circuit, have found a federal constitutional right for same-sex couples to marry.

It is the contrary decision of the Sixth Circuit which is now before the Supreme Court.

While any decision by the Court is unlikely to quiet public debate, a decision does have the potential to allow same-sex marriage throughout the country.

The key role of Justice Kennedy

Justice Anthony Kennedy is often the swing vote on the Court.

Kennedy’s importance on questions of LGBT issues is magnified because he has written the three landmark opinions of the modern Supreme Court vindicating the rights of LGBT Americans. They are:

• Romer v. Evans (1996), which invalidated a state constitutional amendment barring the state and its political subdivisions from protecting sexual minorities from discrimination;
• Lawrence v. Texas (2003), which prohibited states from criminalizing private, consensual, non-commercial sexual conduct between consenting adults;
• United States v. Windsor (2013), which struck down Section 3 of federal DOMA which had prohibited the United States from recognizing same-sex marriages validly entered into in a state.

Although Kennedy acknowledged during the oral argument that opposite-sex marriage has held sway for “millennia,” he had a much shorter time frame in mind when contemplating the pace of legal change. Kennedy compared, on the one hand, the length of time between Obergefell’s argument and Lawrence v. Texas; and on the other hand the landmark civil right case Brown v. Board of Education (1954) and Loving v. Virginia (1967).

Kennedy asked Solicitor General Donald Verrilli, “Haven’t we learned a tremendous amount … since Lawrence, just in the last ten years?”

This is a striking rhetorical strategy. The Brown decision declared that racial segregation in public schools violated the Equal Protection Clause, and Loving concluded the same as to prohibitions of interracial marriage. Kennedy thus explicitly referenced the progression from racial segregation to racial equality in marriage regulation as a possible model for an evolution from criminalizing homosexual activity to nationwide legalization of same-sex marriage. His comparison seems to indicate the skepticism with which he views statutes limiting marriage to one man and one woman.

Justice Kennedy also directly confronted the Michigan Special Assistant Attorney General as to the purpose of marriage.

John J. Bursch centered his explanation of limiting marriage to opposite-sex couples on procreation, explaining that marriage is used as the glue to link children with their biological parents.

Kennedy seemed baffled by Bursch’s insistence that marriage is merely social regulation, saying that “the whole purpose of marriage” is to “bestow[…] dignity on both man and woman.”

Kennedy’s past opinions are built upon a bedrock of the importance of the “dignity as free persons,” and the “status and dignity […] of a man and woman in lawful marriage.”

If supporters of marriage equality have won Justice Kennedy, however, they have just as likely lost the other potential swing vote on the court: Chief Justice Roberts.

The Chief Justice is generally a member of the conservative wing, but has broken rank in the past as in his opinion upholding the Affordable Care Act or Obamacare in National Federation of Independent Business v. Sebelius.

Such a switch by Roberts seemed unlikely given what happened during Tuesday’s arguments.

Roberts noted that if supporters of marriage equality “prevail here, there will be no more debate,” meaning that the closing of debate would also “close minds” and halt any societal acceptance of same-sex marriage. As Roberts put it, “People feel very differently about something if they have a chance to vote on it than if it’s imposed on them by … the courts.”

The specter of Roe v Wade hovers in the background

The unspoken comparison is to abortion.

Although Roe v Wade was a victory for abortion rights, many commentators believe that because the Supreme Court displaced a political debate into constitutional law, each ideological side entrenched into its own base.

One of us (Dara E. Purvis) has previously written on the inapplicability of this argument to marriage equality. The comparison is inapt for one core reason: visibility. Women who have had abortions still face stigma and rarely discuss the topic openly.

By contrast, marriage equality is by definition visible – and one of the key factors determining an individual’s support of LGBT rights generally and marriage equality in particular is whether that individual knows a gay or lesbian person.

It is always a dangerous, even foolish, exercise to try to predict the outcome of a case based on the oral argument.

In the case presently in front of the court, there are several possible outcomes. The most troubling would be if one of the Justices becomes unable to participate in the decision – Justice Ginsburg, for example, has recently suffered some bouts of ill health – in which case a vote could split 4-4.

In that situation, the Court could either hold the case over to next term, or issue a 4-4 decision, which would have the effect of upholding the Sixth Circuit and the challenged statutes, but leave the current circuit split unresolved.

Or a majority of the Court could find that there is no constitutional right to marriage equality for same-sex couples. This would allow over a dozen states currently issuing marriage licenses to same-sex couples under orders from federal courts to seek relief from those orders to stop issuing such licenses. Then, if they were successful, they would try to figure out how to deal with those marriages that have already been solemnized.

The possible scenario of a split court

Alternatively, the Court could split on the two issues before it, finding that while the Constitution does not require states to grant marriage licenses to same-sex couples, states must recognize same-sex marriages performed in other states. This would be in effect a practical victory for marriage equality, since marriage rights could be had for the cost of crossing state lines.

And finally the Court could find that the Fourteenth Amendment’s guarantees of equality and liberty mean that states must allow same-sex couples to marry, in which case it would not likely reach the interstate marriage recognition issue.

Even if the Court strikes down the challenged statutes, it would not mean that full equality would be immediately achieved by sexual minorities.

In some states, such as Pennsylvania where your authors reside, the state anti-discrimination law does not protect sexual minorities.

There are now highly visible battles, such as the one that recently played out in Indiana, over whether business owners can assert a religious objection to providing venues, catering or photography for same-sex weddings.

Still, a decision to strike down all anti-same-sex marriage laws would surely have immense importance in the everyday lives of millions of Americans.

You can listen to the audio of the oral arguments in Obergefell v Hodges here.

This article was originally published on The Conversation.
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