As with most high-profile cases these days, Justice Anthony Kennedy is likely to cast the deciding vote in the two marriage equality cases the Supreme Court has agreed to hear in the spring. And several legal scholars think that his vote for equality is all but assured:
“I expect Justice Kennedy to vote in favor of marriage equality,” said Erwin Chemerinsky, a constitutional law professor at the University of California, Irvine School of Law.
“There have been two decisions in American history expanding rights for gays and lesbians: Romer v. Evans and Lawrence v. Texas. Anthony Kennedy wrote the opinion for the Court in both,” Chemerinsky told TPM by email. “He knows where history is going and that he faces the choice between writing the next Plessy v. Ferguson and the next Brown v. Board of Education. He wants to be on the right side of history.”
Lucas Powe, a Supreme Court historian at the University of Texas, Austin School of Law, agreed. “I think Kennedy’s vote is very secure,” he told TPM. “Kennedy has a libertarian streak — he has written the key gay rights opinions and I think he will continue to do so.” …“Justice Kennedy has authored two powerful, eloquent, and compelling rulings,” said Evan Wolfson, executive director of Freedom To Marry, “that will be central to the Windsor case, which challenges the ‘gay exception’ to the way the federal government ordinarily respects lawful marriages for federal purposes, and the Perry case, which seeks to restore the freedom to marry stripped away from gay couples by California’s Prop 8.”
This assumes that the court agrees to rule on the merits of one or both of the cases, which is far from certain. The justices have given themselves clear paths to a decision that kicks the cases out based on standing without touching the central question of marriage equality. And it leaves one key question unanswered: If he does rule in favor of equality, will he agree to declare sexual orientation to be a suspect class and apply heightened or intermediate scrutiny rather than the rational basis test? That question may have more significant implications for future cases involving gay rights than the actual outcome of these cases.