Same sex marriage arguments are going to hit the Supreme Court of the United States Tuesday, April 28, and the outcome is anybody’s guess at this point. Pundits from all sides are predicting failure, partial success, or total success in recognizing marriage equality as a constitutional right. It’s been inevitable that the highest court in the nation would have to hear arguments on the topic sooner or later, and no matter the outcome, the fight is far from over.
At the root of the case is a combination of lawsuits from four states (Ohio, Kentucky, Michigan and Tennessee) that involve six separate couples who brought five challenges to same sex marriage bans. After the Sixth Circuit Court of Appeals broke with previous courts to rule in favor of state control over who can marry whom, it needed to be escalated to the Supreme Court. The Eighth Circuit joined them just last month in saying that Nebraska can also continue to discriminate against gay couples.
The issue is one of the most divisive in the country today, pitting young against old, religious fundamentalists against modern minded individuals, and, perhaps most interestingly, states’ rights supporters against civil libertarians. Overall, the majority of Americans are in favor of letting people marry whomever they choose because they don’t believe that it’s the government’s place to enforce some peoples’ religious beliefs on others.
It has also made ripples within the current presidential candidates’ camps. On the one hand you have people like Rand Paul who aren’t necessarily opposed to marriage equality, but who are touting states’ rights to dictate laws within their own borders without interference from the federal government. On the other hand, you have those like Ted Cruz who are vehemently opposed to marriage equality based on their own personal religious beliefs. On the third hand (yes, in this scenario you have three hands) you have Hillary Clinton who is absolutely in favor of same sex marriage being legal across the board.
At least one Supreme Court justice has already tipped her hand as well. Justice Ruth Bader Ginsburg has publicly stated her opinion many times in the past that she is in favor, and she has actually presided over such a ceremony herself. Other justices that seem likely to vote in favor are Sonia Sotomayor, Elena Kagan and Stephen Breyer. Justices Antonin Scalia, Samuel Alito, and Clarence Thomas have all publicly opposed LGBTQ rights in the past, including on previous cases.
So that just leaves Chief Justice John Roberts and Anthony Kennedy. Roberts is always hard to figure out, often just voting whichever way the wind is blowing that day, sometimes even twisting the law to justify his thought process rather than adjusting his thought process to fit the law. It’s hard to say what he’ll do on this matter as well.
Kennedy is another matter, however. He has long been a supporter of striking down discriminatory laws against same sex activities in general, though he has never publicly stated one way or the other how he feels about marriage equality itself. Additionally, he has long been a staunch supporter of states’ rights, even going so far as to state that marriage laws are part of the states’ domain. His vote is the one that matters most on this, as it will likely be the fifth to put it over the top. Roberts is just too fickle to predict, and the other seven are all but sure things to vote with their ideology as detailed above.
No matter what the ruling ends up being, however, the fight is far from over. If marriage equality becomes the law of the land, expect to see more Religious Freedom Restoration Act type legislation from conservative states. If, however, marriage equality is not recognized, you can rest assured the fight will continue in force at the state level.
Buckle up, folks, this is going to be a big one.