Well, the time has finally arrived. On Tuesday, the Supreme Court will hear oral arguments in four cases consolidated under the name Obergefell v. Hodges. By the end of June, the Court is widely expected to hand down a decision declaring that anti-gay marriage discrimination violates the Constitution. Indeed, this outcome is so widely expected that one of the Court’s conservatives, Justice Clarence Thomas, complained in February that his colleagues are signaling that marriage equality is coming.
Should these expectations prove accurate, however, the question of how the Court’s opinion is drafted is almost as important as what result it ultimately reaches. Here are four things to watch out for in the upcoming oral argument that could shape how gay rights continue to develop after these cases are decided:
Nearly every gay rights victory handed down by the Supreme Court has Justice Anthony Kennedy’s name on it. Kennedy authored the very first Supreme Court decision recognizing that anti-gay laws can violate the Constitution’s promise of equality, and he followed that up with decisions targeting sex bans and ending marriage discrimination by the federal government. In the likely event that the Court declares marriage discrimination unconstitutional throughout the nation this June, expect to find Justice Kennedy’s name on that decision as well.
The fact that the same justice repeatedly writes in the same issue area can be a sign that they find that area particularly interesting, but it is also true that closely divided cases are frequently assigned to the most on-the-fence member of the Court — on the theory that no one can tailor an opinion to their own idiosyncratic views better than themselves. Kennedy’s record supports the latter interpretation, as he’s fretted in the past about the “uncharted waters” facing the Court if it hands down a decision bringing marriage equality to the entire nation. Since then, however, the Court has allowed lower court decisions supporting marriage equality to take effect — a strong sign that Kennedy has made up his mind in favor of equality. Nevertheless, Kennedy remains the justice to watch for the best sign of how the Court will shape its opinion.
A few commentators have suggested that Chief Justice John Roberts could also be in play. Nothing is impossible, but a Roberts vote in favor of marriage equality is highly unlikely. In United States v. Windsor, the Court’s 2013 decision striking down marriage discrimination at the federal level, Roberts did not simply dissent. He used his dissent strategically to try to limit the scope of Windsor. “The Court does not have before it,” Roberts wrote, “and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their ‘historic and essential authority to define the marital relation,’ may continue to utilize the traditional definition of marriage.” Roberts’s opinion did not convince most of the lower court judges to consider marriage equality cases after Windsor, but it was almost certainly an effort to limit the advance of gay rights in the future.
As any law student who has struggled through Kennedy’s gay rights opinions can tell you, they are not models of clarity. They ooze with flowery language and passages that seem at odds with other parts of the same opinion. And they lack coherence with decades of Supreme Court precedent. Kennedy’s opinions do not so much revise legal doctrine as they skip through the wilderness of constitutional law, blithely ignoring the paths laid by more thoughtful travelers.
One line of precedent that Kennedy has largely ignored in his gay rights opinions are the decisions establishing that groups that have historically faced discrimination that bears “no relation to ability to perform or contribute to society” enjoy heightened protection under the Constitution. Given Kennedy’s previous concerns about “uncharted waters,” it is possible that Kennedy has been reluctant to say that anti-gay discrimination is subject to heightened scrutiny under the Constitution because he knew that such a holding would lead to marriage equality becoming the law of the land sooner than he was ready for it to happen. Now, however, with the Court loudly signaling that it is ready to extend equality to all 50 states, it is hard to see why they would not bring gay rights law in line with the rest of the Court’s equal protection doctrine.
There are ways that Kennedy could do that which wouldn’t necessarily lead to all anti-gay discrimination being subject to heightened scrutiny, but the question of whether all such discrimination will be treated skeptically by courts in the future has profound importance for the next generation of gay rights cases. Earlier this year, for example, Kansas Gov. Sam Brownback (R) rescinded an order forbidding the state from firing employees due to their sexual orientation or gender identity. If all government-sponsored anti-gay discrimination is subject to heightened scrutiny, gay, lesbian and bisexual state workers in Kansas will still enjoy significant legal protections. If the Court’s holding on marriage equality does not extend such scrutiny to anti-gay discrimination, by contrast, the fate of gay rights outside of the marriage context is far more uncertain.
The four marriage equality cases currently before the Court present two distinct legal questions. One is whether the Constitution requires states to permit same-sex couples to marry on the same terms as opposite-sex couples; the other asks whether the Constitution requires “a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state.”
Indeed, Jim Obergefell, the named plaintiff in Obergefell, is already married — or, more precisely, he is a widower. Obergefell’s husband John Arthur died recently of Lou Gehrig’s disease. In the final months of Arthur’s life, the two men chartered a plane to Maryland and were legally married on the tarmac. Mr. Obergefell now wants his late husband’s death certificate to list him as the “surviving spouse.” The state of Ohio is fighting in court to be able to issue a death certificate claiming that Arthur died single.
It is not at all clear how the Court could devise a persuasive legal distinction between states issuing their own marriage licences and states recognizing out-of-state marriages. Nevertheless, given the Court’s history of moving in slow, incremental steps on gay rights, it is possible that some of the justices will look for a way to postpone the question of full marriage rights while still holding that Ohio must recognize Obergefell and Arthur’s marriage.
Looming over the battle for marriage equality are the efforts by religious conservatives to establish that appeals to “religious liberty” can legally justify discrimination against LGBT Americans. This issue is not presented by Obergefell — the Court is considering whether marriage discrimination by states is forbidden by the Constitution, while advocates of the conservative position on “religious liberty” typically want to give private businesses the right to discriminate. Nevertheless, conservative religious groups have not exactly been shy about their desire to use so-called religious liberty claims as a firewall to limit the expansion of gay rights.
Justice Samuel Alito, who, among other things, authored the Court’s decision in Hobby Lobby v. Burwell, is worth watching because he is probably the Court’s biggest supporter of this effort to expand the ability of religious objectors to defy the law. Especially if it is clear that marriage discrimination is going to lose, Alito may try to push Kennedy — who joined the Hobby Lobby opinion but also wrote a separate concurrence — to carve out special rights for people with religious objections to LGBT Americans.