Nothing in the almost two and a half hours of oral arguments altered my prediction that at the end of June 2015 the Supreme Court will hold that state laws prohibiting same-sex marriage deny equal protection to gays and lesbians. The only question is whether it will be 5-4 or 6-3 to declare unconstitutional laws prohibiting marriage equality and whether the opinion will be written by Chief Justice John Roberts or Justice Anthony Kennedy.
Why the certainty of this prediction? To begin with, the states that are defending their bans on same-sex marriage – Kentucky, Michigan, Ohio, and Tennessee –failed to articulate any legitimate justification for their laws. In reality, the laws prohibiting same-sex marriage stem from a moral condemnation of homosexuality, but the Supreme Court has been explicit that it will not accept such a justification for laws discriminating against gays and lesbians.
So the states are trying to defend their laws by stressing tradition and the historic definition of marriage as being between a man and a woman. But a tradition of discrimination is not an acceptable reason in the courts for continuing to discriminate. In 1967, in Loving v. Virginia, the Supreme Court declared unconstitutional a state law that prohibited interracial marriage. Such laws had existed throughout American history, even in California until the 1940s. But the Court rightly gave no deference to this tradition and rejected the argument that the definition of marriage should be left to the political process.
The primary argument made by the states is that marriage is linked to procreation and that only opposite sex couples can procreate without artificial assistance. Michigan, for example, declares in its brief: “Separating marriage from procreation dramatically changes the state’s interest in the institution. . . . It is the state’s interest to encourage opposite-sex couples to enter into a permanent, exclusive union within which to have and raise children that motivates state marriage laws.”
But the problem with this argument is that marriage never has been legally linked to procreation. Opposite sex couples can marry even if they do not have the desire or the ability to have children. More importantly, same sex couples will have children – through adoption, surrogacy, and artificial insemination – whether or not they can marry. If marriage is beneficial to children in creating a stable family, these children should have that benefit as well.
The states’ argument appears to be that if gay and lesbian couples cannot marry, they will choose instead to marry those of the opposite sex and that would be better for the raising of children. But there is no factual basis for believing this and it is based on the unfounded assumption that children are better off with parents who are of the opposite sex.
The political realities also explain why the Court will declare unconstitutional laws that prohibit marriage equality. A recent opinion poll shows that 61 percent of Americans favor allowing same-sex marriage and the support for this is overwhelming among those under age 35. At this moment, same-sex marriages are allowed in 38 states and 20 foreign countries. The issue is less about whether the Court will extend the right to the entire country and more about whether the Court will take it away from people in the many states where it exists by virtue of federal court decisions.
Most of all, the prior opinions of these justices make clear how this is going to come out. There have been three Supreme Court decisions in history expanding rights for gays and lesbians and the majority opinion in each was written by Justice Kennedy. He likely sees one of his most important legacies as being the expansion of rights for gays and lesbians. The fact that he asked hard questions of both sides at oral arguments does not lessen the sense that his vote for marriage equality is a sure thing.
No one doubts that the liberal justices — Ginsburg, Breyer, Sotomayor, and Kagan — will vote to strike down these laws. Their questions at oral arguments made clear how they are likely to come out.
It is harder to predict John Roberts’ vote. Unlike these other justices, he dissented two years ago when the Court declared unconstitutional a key provision of the federal Defense of Marriage Act. His questions at oral arguments indicated support for the states’ position. But he also raised the question of whether laws prohibiting marriage equality are a form of sex discrimination and, of course, they are just that. The only reason that I cannot marry a man is because of my sex. One of the first courts to consider marriage equality, the Hawaii Supreme Court in Baehr v. Lewin said this and it was the position of Judge Marsha Berzon in the Ninth Circuit decision striking down state laws prohibiting same-sex marriage last fall. It was interesting to hear Chief Justice Roberts raise this.
I believe that Roberts cares deeply about his legacy and he knows no matter how long he serves as Chief Justice, he will be evaluated, in part, based on his vote in these cases. I think he is a justice who wants to be on the right side of history and there is no doubt where history is going on this issue.
Ultimately, for Roberts, like for Kennedy, Ginsburg, Breyer, Sotomayor and Kagan, the question is whether they want to be part of the next Plessy v. Ferguson, a decision regarded by history as wrong and based on bigotry, or the next Brown v. Board of Education, a ruling seen as expanding equality and the Court at its finest moment. Looked at this way, it is easy to see why the Court will find a constitutional right to marriage equality.