Did Thomas Signal a Win in Marriage Cases?

Did Thomas Signal a Win in Marriage Cases? February 11, 2015

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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