Thursday, April 30, 2015

What will the Court decide?

There's been speculation for months already about how the US Supreme Court will rule on marriage equality, and after the oral arguments this week, pundits analysed what was said like a fortune-teller examining tea leaves. But no one knows what will happen.

We know that there are 3 Justices—Scalia, Thomas and Alito—who are hardcore opponents of marriage equality. Similarly, Justices Ginsburg, Kagan, Sotomayor and Breyer are pro-marriage equality. No one disagrees about any of that.

Chief Justice Roberts is conservative, and widely expected to side with the anti-gay justices. However, he has his legacy as Chief Justice to consider, and with a non-doctrinaire brand of conservatism, it’s entirely possible he may stand for marriage equality. Personally, I think that’s unlikely, though I could see him writing a dissent that supports marriage equality on one question (whether states must recognise marriages performed in other states) and against forcing states to allow same-gender marriages within their states.

The swing vote, Justice Kennedy, has written all the Court’s pro-gay rulings since 2003 and has always been forceful, if often measured, in his arguments. So I think it seems highly improbable that he’ll suddenly do a 180 and oppose 50-state marriage equality.

I expect to see the Court rule in favour of 50-state marriage equality. I have several reasons for saying that, starting with history: The majority on the Court recognise that the nation has shifted dramatically on marriage equality with solid majorities supporting it. 37 states—74% of all US states—currently have marriage equality. That’s far more support than when the Court struck down all remaining laws against interracial marriage.

If the Court were to rule against marriage equality, it would throw the entire nation into chaos, as well as political turmoil far greater than anything the country has seen in at least a decade, when the radical right was at their peak of power on this issue. If the Supreme Court rejects marriage equality, the radical right has vowed to attempt to again make marriage equality illegal in all 37 states that currently have it.

Obviously, many of those crusades would be absolute non-starters. But it would give the radical right a focus for raising hundreds of millions of dollars which, when added to the billions the rich and corporations will spend to elect Republican state legislatures, could make it possible to re-outlaw marriage equality in some states.

In other states, a zealous elected official—governor or attorney general, for example—may re-ban marriage equality by fiat. All of that would lead to years and years of court battles.

The Justices know all that, and the last thing they’d want to do is create such chaos, or to put in limbo the legal marriages of thousands of couples who could be forcibly divorced if the radical right succeeds. That’s the very antithesis of equality under law the Court upholds.

So, in sum, the majority of the Justices are aware of the historic shift in attitude in the USA, and how negative their legacy would be if they ignored that shift and ruled against marriage equality. They also know the chaos and loss of legal rights that such a rejection would mean. Add it all up, and I feel reasonably confident that the Court will rule in favour 50-state marriage equality.

But no one knows what will happen, including me. In a couple months we’ll see if I’m right.

Meanwhile, the video up top is the latest from Matt Baume, who takes a calm, reasoned look at the oral arguments. His is less tea leaf reading than simple analysis, and among the best I’ve run across so far.


rogerogreen said...

I have no idea. I'm afraid the decision will be one of those awful compromises, pretty much what you stated for Roberts, that NO one position gets a majority either to create a 50-state marriage equality.OR to ban same-sex marriage. They just don't want to decide. Kennedy's arguments are clear that he doesn't want to change the precedent of hetero marriage (tho that precedent DOES exist in other cultures) BUT that to maintain equal protection under the law, accommodations must be made. If I were a betting man, and I'm not, this will be the LAST case announced, and NO one will be happy. Just not seeing Loving v Virginia II. Hope I'm wrong.,

Arthur Schenck (AmeriNZ) said...

I think that Justice Ginsburg is right, and the Court shouldn't have ducked the issue to decide when they had the chance. And that's part of the reason I'm optimistic that the Court will do the right thing and recognise 50-state marriage equality. As I said in the post, the alternative is chaos and maybe another decade of lawsuits and counter-suits, often with same-gender couples being unmarried, re-married and then unmarried yet again. Ultimately, the Supreme Court will have no choice but to recognise 50-state marriage quality. If they don't do it this year, and they unleash the chaos that follows, then they will deserve the contempt in which they will be held. This decision will shape the entire legacy of the Roberts Court.

rogerogreen said...

This is the court that decided, in Citizens United, that money wouldn't hurt the electoral process. But maybe you're right. http://www.nytimes.com/2015/04/30/us/gender-bias-could-tip-chief-justice-roberts-into-ruling-for-gay-marriage.html