Did Thomas Signal a Win in Marriage Cases?

On Monday, the Supreme Court refused to issue a stay of a district court order overturning Alabama’s ban on same-sex marriage even though they will decide the issue once and for all in a few months. Is this a signal of the near-inevitability of a win on marriage equality? Justice Thomas hinted that it might be:

Thomas acknowledged in a dissenting opinion that the court’s move to allow gay marriages to go ahead “may well be seen as a signal of the court’s intended resolution” as it considers cases from four other states on whether same-sex marriage bans are permitted under the U.S. Constitution. Although only two justices publicly dissented, the court order did not reveal whether any other justices voted to grant the stay.

Oral arguments in the cases, which are expected to result in a definitive nationwide ruling on the matter, are due in April with a decision expected by the end of June.

Gay rights groups shared Thomas’ view.

Sarah Warbelow, Human Rights Campaign’s legal director, said the justices’ action on Alabama “has telegraphed there is virtually zero risk that they will issue an anti-equality ruling this summer.”

The group also told same-sex couples in the 13 states where gay marriage is still banned to “start your wedding plans now.”

But is that true? Has the court really already made up its mind and is a win for equality essentially a foregone conclusion? Maybe. Perhaps even probably. But not a certainty. The court’s behavior over the past couple years has been highly unusual in that they have consistently refused to stay lower court opinions striking down state bans on same-sex marriage even while they were also denying cert in those cases, thus allowing gay couples to get married before there was a definitive ruling from the high court on whether those bans were constitutional or not.

That means that, since the Windsor ruling, we’ve gone from 12 to 37 states where same-sex marriage is legal, almost all of them the result of federal court rulings overturning their bans. Thousands and thousands of gay couples are now legally married while the possibility still exists that their marriages could be legally voided if the Supreme Court rules in favor of the states in June. But it’s harder to take a right away from people than it is to refuse to give it to them in the first place.

So has the Supreme Court made up its mind? Of course they have, or at least most of them have (though the refusal to issue stays is not necessarily proof of this). There’s no doubt where at least 7 of the justices are going to come down in June. The four liberal justices are going to vote for equality and at least three of the conservative justices (Scalia, Thomas and Alito) will vote against it. The only wildcards at all are Kennedy and Roberts and Kennedy is the only one that really matters. If he’s ready to take his rulings in the three previous gay rights cases that he authored to their obvious conclusions, that will be the ruling. Roberts, if he chooses to come along, would be the icing on the cake. I’ve been predicting all along that we would have nationwide marriage equality at the end of June and I stand by that.

What will be more interesting, I think, is whether the court will up the standard of review in cases involving sexual orientation from the rational basis test to heightened scrutiny. That would have a much bigger effect on a wide variety of cases because it would make it more difficult for the government to constitutionally justify any law that impacts the LGBT community in a disproportionate manner. But here’s one possibility: I could see Roberts cutting a deal, telling Kennedy that he’ll go along with the majority, probably while writing his own concurring opinion that is narrower than the majority opinion, as long as Kennedy agrees not to increase the standard of review. I wouldn’t say this is a 50/50 proposition, maybe more like 67-33 against it, but that’s still a relatively good chance of it happening.

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  • eric

    There’s no doubt where at least 7 of the justices are going to come down in June. The four liberal justices are going to vote for equality and at least three of the liberal justices (Scalia, Thomas and Alito) will vote against it. The only wildcards at all are Kennedy and Roberts and Kennedy is the only one that really matters.

    Actually, the results of this recent SCOTUS decision make me think that 7-2 may be a possibility. Alito didn’t join with Scalia and Thomas here. Maybe he sees the historical writing on the wall and (with Roberts), would rather be seen to support the winning side even if he doesn’t believe in it.

    I’m still going with 6-3 as my predicted outcome. But after this, I will be much less surprised at a 7-2 decision than I would have been a month ago.

  • http://motherwell.livejournal.com/ Raging Bee

    Maybe they’re just waiting to see if gay marriage destroys civilization as we know it and brings down the wrath of God, before making a final decision?

    In any case, I really hope the HRC crowd don’t get too cocky too soon. Whoever is going to argue for same-sex marriage before the SCOTUS still needs to make the most seamless and unassailable case they possibly can. This is the most important court battle they’ll ever fight, and it’s not been won yet.

  • John Pieret

    Your evaluation is pretty close to my own. I would say that there is a small but real chance that Alito, based on stare decisis, would go along with finding a constitutional right to SSM, especially if Roberts joins the majority. The other difference I have is with this:

    I could see Roberts cutting a deal, telling Kennedy that he’ll go along with the majority, probably while writing his own concurring opinion that is narrower than the majority opinion, as long as Kennedy agrees not to increase the standard of review.

    If Roberts offers that deal and Kennedy accepts it (which the moderate justices would have to go along with to get the result they want), Roberts could assign himself to write the majority opinion and leave the moderates to write concurring, but not binding, opinions arguing for a stricter standard of review. If Kennedy wanted it bad enough, Roberts could let him write the majority opinion and join in it, but the results would be the same.

  • colnago80

    I suspect that, if Roberts votes yea on same sex marriage, he will insist on writing the opinion. This is a guy who has his eye on the history books and just adding a concurrent opinion wouldn’t be sufficient for his ego.

  • gshelley

    I’m not so sure Alito will be against. One of his arguments in DOMA was that it was so new we should be cautious. With thousands of marriages in the past year in dozens of states, he may feel the caution line no longer applies

    I know Thomas claimed that last year, in a similar case, the Supreme Court granted a stay, but I don’t know how disengenous he was being there. I don’t know of other cases where the circuit court refused to get involved, so the State had to ask for their stay from the Supremes

  • eric

    @4 – that’s a good point.

    @3 and @4: given what you say, why would Kennedy agree to any compromise? You’re basically saying that Kennedy has a choice between being the author of one of the most important 5-4 decisions of a generation, or being one of the non-writing concurrers in a 6-3 majority (of one of the most important decisions of a generation). Given such a choice, even someone who isn’t typically a grandstander is going to be highly tempted by door #1.

    In any event, you both have made me think that there are probably going to be 3-4 written opinions on this one. Everyone justics, pro or con, is going to want to have their words on this historic moment.

  • whheydt

    Bear in mind that the court told the lawyers to argue on *two* points. One is: (basically) is there a right to be leagally married for same-sex couples? The other is: is there a requirement for states to recognize same-sex marriages (and, of course, by implication any other marriage a state normally bans) from other states?

    If they support the second point, the first is, essentially, moot. If they support the first, the second is, essentially, irrelevant. Thus, a split decision would be weird.

  • dugglebogey

    @4 I agree completely. If Roberts votes to affirm, it is so he can write the opinion. But is it so he can narrow the definition or is it so he can write an historic opinion?

  • cptdoom

    @7 whheydt: I am wondering if another scenario could be in the works. A 5-4 or 6-3 decision that states can’t bar same-sex couples from marrying but a 9-0 decision that states have the option of not recognizing marriages performed elsewhere that are illegal in that state. The circuit court decisions so far on the second question from the SC have been, as I understand it, if a states recognizes some illegal marriages performed in other jurisdictions – e.g., first cousin marriages – they have to accept all, but haven’t touched on the rights of the states to deny recognition of all such marriages. This would confirm a conservative state’s rights principle while still allowing for same-sex marriage nationwide.

  • abb3w

    @3, John Pieret

    Roberts could assign himself to write the majority opinion

    That seems significantly likely, based from this paper.

    @3, John Pieret

    I would say that there is a small but real chance that Alito, based on stare decisis, would go along with finding a constitutional right to SSM, especially if Roberts joins the majority.

    Or, as cptdoom suggests @9ish, he might at least go along part way. SCOTUS Blog indicates there’s two questions:

    1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

    2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

    Wikipedia indicates the Searcy v Strange case in Alabama was under the second question, and there may well be seven votes to support that. There was also Strawser v Strange under the first question — but the 11th consolidated them. While there might be only five votes on the first question, that wasn’t enough; and as the State didn’t try hard enough to keep the issues separate, Roberts may have let them lie in their mess, rather than deal with untangling them to stay Sawser but not Searcy.

    So, possibly a split ruling: the five usual suspects in favor on both questions, Alito with a limited concurrence on one of the two questions, Thomas and Scalia dissenting against both, and Roberts either joining Alito for the more limited concurrence, or joining the main majority to try and limit the scope.

  • xuuths

    Scalia will repeatedly demand to know “When did same sex marriage become constitutional?” They will have to have a ready answer for that question, because he is going to ask it.

  • D. C. Sessions

    I suspect that, if Roberts votes yea on same sex marriage, he will insist on writing the opinion. This is a guy who has his eye on the history books and just adding a concurrent opinion wouldn’t be sufficient for his ego.

    Never mind ego. Roberts likes to write key opinions because it lets him slip in time bombs or water down the effects.

  • John Pieret

    eric @ 6:

    why would Kennedy agree to any compromise? You’re basically saying that Kennedy has a choice between being the author of one of the most important 5-4 decisions of a generation, or being one of the non-writing concurrers

    I am not sure that Kennedy wants to elevate the standard of review of cases involving LGBT beyond “rational basis” (I just went along with Ed’s premise). In all his decisions on gay rights — Romer, Lawrence and Windsor — he has studiously avoided talking about the level of review to be applied to such cases. There may be no need for Kennedy and Roberts to strike a deal because they are already on the same page. If they are, then I suspect that Roberts will be the author of the majority opinion.

  • eric

    Whheydt @7:

    If they support the second point, the first is, essentially, moot.

    Well, no. That’s exactly what conservatives would probably argue and would like everyone to think. Its the same argument they use against pro-choice: give states the right to decide for themselves (on whether to allow abortion or issue marriage licenses), because even if a state decides not to allow them, the public still has access to it via other states. The argument fails both times for the same reason, and the abortion comparison should make that obvious: the point is not moot because not everyone is rich enough to just go out of state to exercise a right. Limited access equates to a limited protection of a right. If the government is going to claim that marriage and abortion are rights, then nobody should have to drive from Texas to California just to get married or get an abortion. This does not mean that the government is constitutionally obligated to set up shops on a 50-mile square grid to serve everyone, but it does mean that local governmental laws and regulations that actively prevent people from exercising their right should generally not be allowed.