Legal experts chime in on how they expect the Supreme Court justices to vote on marriage equality



JAMES RUSSELL  |  Staff Writer

The battle for marriage equality has reached the Supreme Court.

In April, the justices will hear arguments in four cases stemming from the Sixth Circuit Court appellate decision upholding bans on same sex marriage or marriage recognition in Kentucky, Michigan, Ohio and Tennessee.

But now what? What side of the line are the nine justices going to come down?

Megan Penrose, a professor of law at Texas A&M University School of Law in Fort Worth, said the justices face two questions. The first asks if the 14th Amendment of the Constitution requires states to issue same-sex marriage licenses. The second asks if the 14th Amendment requires states that do not issue marriage licenses to same-sex couples to recognize the marriages of those couples performed in jurisdictions that do recognize same-sex marriage.

According to SCOTUS blog, which covers the Supreme Court, of the four cases the Supreme Court has agreed to hear, only Bourke v Beshear, raises both questions. The Michigan case, DeBoer v Snyder, only addresses allowing same-sex marriages. The Ohio case, Obergefell v Hodges, and the Tennessee case, Tanco v Haslam, only address recognition of same-sex marriages performed elsewhere.

While both questions address the legal obligations of states, the second question, Penrose said, is easier to answer.

“With the patchwork of laws that depend upon where you live, I wouldn’t be surprised if the majority of justices believe states should recognize out-of-state marriages under the full faith and credit clause. But the first question is broader, and the court doesn’t have to arrive at any decision,” Penrose said.

Like other legal observers, Penrose said she believes the decision will be divided 5-4, with justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor and Stephen Breyer joined by swing vote Anthony Kennedy.

In fact, Ginsburg, on Wednesday, Feb. 11, indicated the likely outcome of the cases. Given the recent denial of stays by the Court as the court will likely rule in favor of same-sex marriage.

Ginsburg also indicated which way she’ll vote: “The change in people’s attitudes on that issue has been enormous. In recent years, people have said, ‘This is the way I am.’ And others looked around, and we discovered it’s our next-door neighbor — we’re very fond of them. Or it’s our child’s best friend, or even our child. I think that as more and more people came out and said that ‘This is who I am,’ the rest of us recognized that they are one of us.”

Looking at the tea leaves, Justices Clarence Thomas and Antonin Scalia will likely vote against marriage equality, given their dissenting votes in previous cases related to LGBT issues.

On Monday, Feb. 9, Thomas issued a dissenting opinion after the court cleared the way for same-sex marriages in Alabama. Citing historical precedent, he wrote, “When courts declare state laws unconstitutional and enjoin state officials from enforcing them, our ordinary practice is to suspend those injunctions from taking effect pending appellate review.”

He also called the court’s ongoing decision to deny stays part of “the court’s increasingly cavalier attitude toward the states.”
Justice Scalia joined him in the dissent.

In 2013’s United States v Windsor, in which the court struck down a portion of the Defense of Marriage Act, Thomas and Scalia were joined in their dissent from the majority ruling by Chief Justice John Roberts and Justice Samuel Alito. Alito and Roberts, however, were noticeably absent from Thomas’ dissent on Monday.

Michael Dorf of Cornell University told the Associated Press the absence of Roberts and Alito from the dissent suggested both justices could vote in favor of same-sex marriage this year. Roberts, he said, is the more likely candidate.

But Penrose pointed out that both sides have legitimate legal arguments. And constitutionally, she said, answering the question of whether or not states are compelled to grant marriage licenses to same-sex couples could be a big step.

There is also little historical precedence to justify a sweeping move, she said. Opponents of the two questions before the court argue marriage is not mentioned in the Constitution. In the historic case of Loving v Virginia, which legalized mixed race marriages, marriage was viewed as a right but still limited marriage to one man and one woman.

The Supreme Court is expected to issue its ruling in June.

This article appeared in the Dallas Voice print edition February 13, 2015.