How this month’s marriage wins could affect the Supreme Court

May 28, 2013

By Jacob Combs

AP photo

In a piece published yesterday titled “Will Justices take note of new gay marriage laws?”, the Associated Press’s Mark Sherman asks whether or not recent advances in marriage equality will affect the Supreme Court’s decisions in the DOMA and Prop 8 cases.

As Sherman points out, in just a 10-day spread this May, legislators in Rhode Island, Delaware and Minnesota extended marriage rights to same-sex couples; Illinois could well become the 13th marriage equality state by the end of this week.  France legalized equal marriage rights this month, as did Uruguay and New Zealand in April, and a marriage equality bill received final approved in the UK House of Commons, setting it up for almost certain success in the House of Lords this summer.

In light of these successes, the inevitable question is how the constantly-changing landscape of American marriage law might affect the U.S. Supreme Court as it decides two of the most important LGBT rights cases ever considered by the U.S. judiciary.  Of tantamount importance, of course, is how this month’s news could affect Justice Anthony Kennedy, the court’s frequent swing voter and a likely candidate to author at least one of the marriage equality decisions this term.  ”It is always possible,” Harvard law professor Michael Klarman told the AP, “that Justice Kennedy is reading the newspapers and is impressed with the progress.”

As the AP notes, there is precedent for Justices changing their minds during the course of writing opinions: in fact, Justice Kennedy himself was assigned to write a majority opinion in 1992 upholding the right to include prayers in public school graduations but changed his mind during the drafting process, and ended up leading the 5-justice majority that prohibited such prayers.

Advocates on both sides of the marriage equality issue can make the claim that recent legislative victories reinforce their respective arguments for how the Court should rule this June.  For opponents of equal marriage rights, legislative wins for marriage equality show that the issue is being worked through as part of the democratic process and proves that the courts need not step in to ‘constitutionalize’ the issue.

“These developments provide yet further evidence…that the claim that gays and lesbians are politically powerless and that the courts therefore have some special role in subjecting classifications affecting them to strict scrutiny is baseless,” Ed Whelan, a marriage equality and president of the Ethics and Public Policy Center, told the AP.

On the other side of the issue, advocates of equal marriage rights argue that the rapid growth of public support for marriage equality demonstrates that the justices would be helping to enact an inevitable shift if they extend marriage rights to same-sex couples.  Recent progress, these advocates point out, has been primarily in the blue states, and LGBT Americans in the red states could be left in the lurch were the Supreme Court to stay out of the issue.  ”These states moving in the direction of marriage is a far cry from all states doing it,” Mary Bonauto, who directs the Civil Rights Project at Gay & Lesbian Advocates & Defenders, told the AP.

In the end, the fact that three (and possibly four) states will have newly minted marriage equality laws by the end of May only reinforces the conventional wisdom on marriage equality: the American public has passed a tipping point of support for same-sex couples’ marriage rights, which means that the blue states will soon allow couples to wed but the redder states will likely continue their marriage prohibitions.  At some point, the Supreme Court will almost certainly need to step in to establish marriage equality across the U.S.  That moment keeps seeming sooner and sooner, although it still may very well not come this June.