Today the U.S. Supreme Court heard oral argument in several cases from the 6th Circuit (Kentucky, Michigan, Ohio, and Tennessee) presenting two issues for decision:
1. Does the U.S. Constitution require that states permit same sex marriages?
2. If states are not required to permit same sex marriages, are they nevertheless required to recognize and honor same sex marriages consummated in other states?
Over at Volokh Conspiracy [a group blog of conservative law professors] they have a podcast where Gerard Bradley, professor of law at Notre Dame, and Ilyia Somin, professor of law at George Mason School of Law in Washington D.C. previewed the arguments. The two were in agreement that Justice Kennedy is the critical swing vote, and that Justice Kennedy will likely join the four liberal justices [Breyer, Ginsburg, Sotomayor, and Kagan] to answer both questions in favor of gay marriage.
But there are no guarantees.
Gerard Bradley is strongly opposed to gay marriage. He suggested that the strongest argument in favor of "let's keep marriage between a man and a woman" is that same sex marriage will pose a threat to religious liberty. [He did not explain what he meant by this in his opening remarks, and I can't say I get it] However, Professor Bradley felt that in the final analysis, Justice Kennedy--and the court as a whole--would likely be swayed by the arguments on behalf of Justice, Equality, and Dignity that swing this case in the plaintiff's favor. Essentially: Bradley says, regretabbly the pro-marriage crowd has the sexier argument.
A key issue will be what standard of review the court will adopt in its decision. How much will the court defer to the judicial process? How much will the court feel compelled to vindicate the rights of the minority under the Constitution? Both professors agreed on the range of options for analysis available to the court: there are four. However Ilyia Somin broke out a separate "Marriage is like Beer Sales" category.
Here are the different levels of scrutiny the court might adopt to uphold or strike the statutes:
- Traditional (hands off) "rational basis" scrutiny. The professors agreed it is unlikely the court would grant that level of deference in these cases.
- A Romer/Windsor "enhanced rational scrutiny" test. In Romer the court held that Colorado sodomy laws were unconstitutional because they were not supported by a legitimate rational legislative purpose, and in Windsor the court held that the Defense of Marriage Act (DOMA), which denied spousal benefits to a same sex couple married in Canada, also failed to pass this enhanced rational scrutiny standard; the statute lacked a legitimate rational legislative purpose.
- Traditional "intermediate scrutiny." The court has applied an intermediate level of scrutiny in cases where it was confronted with discrimination based on sex.
- The court might not base its ruling on discrimination at all, but base its ruling on a fundamental right to marry; this would be analogous to what the court did when it found a fundamental right of privacy to underpin a right to abortion.
- Enhanced scrutiny like in Romer/Windsor yes, and did you notice this is just like beer sales? Somin argues that the court should vindicate the right to same sex marriage because it presents the same issue of gender discrimination the court faced in Craig v. Boren; there the court found an Oklahoma statute that allowed the sale of 3.2% alcohol beer to males under 21, but not to females, was unconstitutional.
Professor Somin filed an Amicus (friend of the court) brief in favor of the "marriage is like beer sales" position. Professor Somin gives an example to drive the point home: take John, Mindy and Suzy. John can marry Mindy, but Suzy may not. There is no basis other than sex for this distinction under the law. States might attempt to base their no same sex marriage laws on the grounds that procreation is the only legitimate purpose. But this is not what they have done because infertile couples may marry, and couples having no intention to have children are allowed to marry. The only basis for distinction is sex, and that's what makes it unconstitutional. It's just like 3.2 percent beer.
A total of 155 briefs were filed in the case in all! This has got to represent in excess of 3,000 pages of briefing for the Justices to take into account.
On the same page at Volokh, there is also a Federalist society podcast link where professor John Eastman of Chapman University provided his court-house steps impressions of today's argument. Professor Eastman was favorably impressed by the arguments in favor of preserving marriage as between a man and a woman. Being a cheerleader for that position, it went better than expected he thought. He is also an experienced and smart observer of the court and his judgment that the traditional marriage folks had the better of the argument today should not be dismissed lightly. He was encouraged by Justice Kennedy pointing out that "You want us to overturn a tradition that is older than a millennia!" He felt the pro-gay-marriage advocates did not have a convincing answer to that concern.
Adam Liptak at the New York Times had a more positive read on Justice Kennedy (from the pro-gay marriage perspective):
In two and a half hours of arguments over whether the Constitution guarantees same-sex couples the right to marry, Justice Kennedy sent conflicting signals. At some points, he seemed wary of moving too fast and torn about what to do. But his demeanor was more emotional and emphatic when he made the case that same-sex couples should be permitted to marry. He is also the author of three landmark opinions expanding the rights of gay Americans.As always, it is difficult to read too much into the questions from the justices. A decision is expected by the end of June.
Stay tuned ....